Torts and Damages - PDFCOFFEE.COM (2024)

TORTS AND DAMAGES By TIMOTEO B. AQUINO Professor of Law San Beda College of Law University of Perpetual Help-Rizal, College of Law Prefect of Student Affairs San Beda College of Law Author, Notes and Cases on Banks, Negotiable Instruments and Other Commercial Documents Co-Author, Reviewer on Commercial Law, Revised Rules on Summary Procedure: Revisited and Notes and Cases on the Law on Transportation and Public Utilities

SECOND EDITION 2005

Published & Distributed by 856 Nicanor Reyes, Sr. St. Tel. Nos. 736-05-67 • 735-13-64 1977 C.M. Recto Avenue Tel. Nos. 735-55-27 • 735-55-34 Manila, Philippines www.rexinteractive.com i

Philippine Copyright, 2005 by TIMOTEO B. AQUINO

ISBN-13: 978-971-23-3991-2 ISBN-10: 971-23-3991-2 No portion of this book may be copied or reproduced in books, pamphlets, outlines or notes, whether printed, mimeographed, typewritten, copied in different electronic devices or in any other form, for distribution or sale, without the written permission of the author except brief passages in books, articles, reviews, legal papers, and judicial or other official pro-ceedings with proper citation. Any copy of this book without the corresponding number and the signature of the author on this page either proceeds from an illegitimate source or is in possession of one who has no authority to dispose of the same. ALL RIGHTS RESERVED BY THE AUTHOR

No. ____________

Printed by

84 P. Florentino St., Quezon City Tel. Nos. 712-41-08 ii • 712-41-01

For my wife Bea, my children Leona Isabelle, Lean Carlo and Lauren Margaret and our parents Bernabe, Dulia, Felisa, Salvador and Amparo

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PREFACE Technological advances have brought us mixed blessings. On one hand, efforts have been exerted to make the world a better and safer place to live in by providing us with new amenities or by improving existing ones. However, the same development that is meant to address human need for advancement and for betterment had resulted in the proliferation of devices, machineries and equipment that expose us to both apparent and latent risks. Take for instance the ubiquitous motor vehicle. About a century ago, the Supreme Court observed in one case that a motor vehicle was, to a horse, a shocking apparition. Now, there is hardly any nook and cranny in the archipelago where motor vehicles in one form or another, cannot be found. It would be unthinkable for us to survive or function the way we are used to without such ever present human invention. But then, it cannot also be denied that the presence of motor vehicles is likewise accompanied by risks. In fact, there is empirical basis to say that road-related accidents comprise a substantial bulk of cases pending in court or at least being investigated by different government agencies. This means that the gift of motor vehicles is also inevitably coupled with the bane of hazards. Indeed, every offering of technology also brings about causes of discontent. Although we try to correct any danger that we discover from technology’s fruits, we are still confronted with perils produced by new products or contraptions. Every age produces its own kind of risk. There is hazard in medicines, in new medical procedure, in “improved” means of transportation and even in ordinary consumer products. Add to the mix countless long standing and unavoidable natural risks, an uncontrolled population growth, and the usual congeries of stratagems, deceits and other human failings and weaknesses, what results is a wide fountain of injuries, troubles and mischief. Law seeks to reduce or, if possible, to eliminate such risks by prescribing rules and regulations and providing penalties for violations thereof and by creating administrative bodies that implement said prescriptions. Tort law, in particular, contributes towards this end by providing deterrence to harmful activities. The knowledge that v

one may be exposed to liability for damage may induce him to desist from using dangerous objects or engaging in harmful activities. It is, however, impossible to totally prevent injury either because men voluntarily accept risk as a quid pro quo for their needs or because they are plainly indifferent to risk or regulation. Tort law’s alternative in this respect is to provide redress to anyone who may be victimized by such voluntary acts or indifference. In doing so, tort law touches almost every branch of law. It involves constitutional law, administrative law, civil law, criminal law, remedial law, commercial law and even the law on legal ethics. The present work is devoted to the above-mentioned specific branch of law — tort law. The book is designed to give students an overview of the framework of law and to state the fundamental concepts, principles and rules of tort law. It also supplies selected cases that illustrate the operation of the law and that provide students with ready primary or secondary authority from which they can discover on their own the doctrines and the doctrines’ inner workings. As much as possible, the reason and philosophy behind the law and doctrine, as well as their history, are presented so that they can assist in gaining firmer grasp of such law and doctrine. The cases are reproduced verbatim — except for deleted or summarized portions that are unnecessary or irrelevant to the topic concerned — because the author believes that it is only through examination and analysis of cases in the original or as written by the Supreme Court that these cases can better serve as pedagogical tools. The author dared venture in the preparation of this work and thereby expose his inadequacies, in the hope that this work will be of help to every student of law. If what is written here will be used merely as a starting point or material for a more enlightened thinking and discussion, then it has served its purpose. THE AUTHOR

PREFACE TO THE SECOND EDITION This edition adheres to the basic aims of the first edition — to give students an overview of the fundamental framework of tort law

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and to state its concepts, principles and rules. The aims are sought to be achieved not only by resorting to expository presentation but also by providing edited cases. This second edition differs from the original work because it contains new cases and authorities. In addition, cases that were part of the original were transferred to sections where they can best serve as examples and study guides. A few cases were deleted and/ or replaced. Discussions of a number of topics were expanded and several topics that were not discussed in the first edition are now part of this edition. Moreover, certain portions of the original edition were transferred to the “Notes” at the end of this new edition. The “Notes” also contain supplemental annotations on selected topics. The author extends his heartfelt gratitude to all those who supported him in the preparation of this work. THE AUTHOR Teresa, Rizal January, 2005

ACKNOWLEDGMENTS I am grateful to all those who helped me in the preparation of this book. I have been fortunate to have been exposed to many teachers and students whose ideas helped shape this work. To all these teachers

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and students, appreciative thanks. In particular, I would like to thank the encouragement and support of Assistant Dean Domingo Navarro of the San Beda College of Law. The past and present Deans of the same institution, Justice Florenz D. Regalado, Dean Jose Sundiang and Dean Virgilio Jara, as well as University of Perpetual Help of Rizal, College of Law Dean Justice Isagani Cruz, have likewise been very supportive and have given me venues for academic work. Special thanks are due to my law partners, Maria Paz TagleChua and Edmundo A. Cruz. Our secretary, Rowena J. Portes, had been indispensable in the preparation of the manuscript while the rest of our staff Olive Lagasca-Velo, Dennis Caballero and Angelito Bisquera contributed in their own way to this endeavor. I also greatly appreciate the assistance of many persons who helped secure materials that were included in the work. Particularly, I would like to thank my classmates Atty. Caroline O. Peralta and Judge Eduardo B. Peralta, Jr., my former student, Atty. Gudelia Cacdac-Guese, Mrs. Jocelyn Silverio, the staff of the College of Law and College of Arts and Sciences Libraries of San Beda College and the staff of the Office of the Dean of the San Beda College of Law. I would also like to thank Mr. Jose Maria Estrada for translating Spanish text of cases that are now integral parts of this work. Finally, I would like to thank Mr. Juanito F. Fontelera and Atty. Ernesto C. Salao of Rex Bookstore, Inc. for making the publication of this work possible. THE AUTHOR

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TABLE OF CONTENTS Preface ....................................................................................... v Preface to the Second Edition................................................... vii Acknowledgments...................................................................... ix CHAPTER 1 — GENERAL CONSIDERATIONS 1. Tort Defined ....................................................................... 1 2. Philippine Tort Law .......................................................... 2 A. Sources ......................................................................... 2 B. Scope and Applicable Laws......................................... 4 a. Catch-all Provisions.............................................. 5 b. Expanded Scope of Quasi-Delict .......................... 6 c. View that Art. 2176 is limited to negligence........ 10 3. Purposes of Tort Law......................................................... 10 A. Major Purposes ........................................................... 10 B. Balancing of Conflicting Interests............................... 11 4. Fundamental Principles .................................................... 12 A. Equity and Justice....................................................... 12 B. Democracy.................................................................... 14 C. Human Personality Exalted ....................................... 15 5. Justifications of Tort Liability .......................................... 15 A. Moral Perspective........................................................ 16 B. Social and Economic Perspective................................ 17 6. Persons who can sue and be sued for Tort........................ 19 A. Plaintiffs: Persons who are entitled to damages........ 19 B. Defendants: Persons who may be held liable ............ 19 7. Remedies ............................................................................ 20 8. Alternative Compensation Schemes ................................. 21 A. Insurance...................................................................... 21 B. Worker’s Compensation............................................... 22

CHAPTER 2 — NEGLIGENCE 1. Kinds of Negligence ........................................................... 23 A. Statutory Basis and Requisites................................... 23 xi

a. Quasi-Delict........................................................... 23 b. Delict ................................................................... 23 c. Contract................................................................. 25 B. Distinctions.................................................................. 25 a. Culpa Aquiliana distinguished from Culpa Contractual .......................................... 25 b. Culpa Aquiliana distinguished from Crimes ...... 26 C. Concurrence of Causes of Action ................................ 26 2. Concept of Negligence ....................................................... 28 A. Definition and Test of Negligence............................... 29 B. Negligence is Conduct ................................................. 31 C. Unreasonable or Undue Risks .................................... 32 D. Forseeability ................................................................ 32 Cases: 3.

Ong vs. Metropolitan Water District ......................... 33 Civil Aeronautics Adm. vs. CA ................................... 37

E. Probability ................................................................... 41 Calculation of Risk............................................................. 42 A. Risk Benefit Analysis .................................................. 42 B. Rule in the Philippines ............................................... 44 a. Circ*mstances to consider.................................... 46 1) Time ............................................................. 46 2) Place ............................................................. 47 3) Emergency....................................................... 47 4) Gravity of Harm to be Avoided ...................... 48 5) Alternative Course of Action ......................... 49 6) Social Value or Utility of Activity.................. 49 7) Person Exposed to the Risk ........................... 51

Case:

Valenzuela vs. CA ....................................................... 57

4. Standard of Conduct: Good Father of a Family ............... 63 A. Attributes of a Good Father of a Family .................... 66 a. Knowledge and Experience of the Actor .............. 66 b. Children ................................................................ 67 Cases:

Julian Del Rosario vs. Manila Electric Co.................. 70 Taylor vs. Manila Electric Railroad and Light Co..... 72 Federico Ylarde vs. Edgardo Aquino........................... 78 c. Physical Disability ................................................ 81 xii

Cases:

United States vs. Bonifacio......................................... 82 Roberts vs. State of Louisiana..................................... 84 d. Experts and Professionals..................................... 86

Case: Culion Ice, Fish, & Electric Co. vs. Phil. Motors Corp. ......................................................... 88 e. Nature of Activity.................................................. 91 f. Intoxication ........................................................... 92 Case: E.M. Wright vs. Manila Electric R.R. & Light Co.............................................................. 93 g. Insanity ................................................................. 96 h. Women ................................................................... 97 5. Standard vs. Specific Rules................................................ 101 Cases: Baltimore & Ohio R.R. vs. Goodman ......................... 104 Pokora vs. Wabash Ry. Co........................................... 105 Preciolilta V. Corliss vs. The Manila Railroad Co............................................................ 107 Cusi & Pobre vs. Phil. National Railways.................. 111 6. Other Factors to Consider in Determining Negligence.................................................................... 115 A. Violation of Rules and Statutes................................... 115 a. Statutes and Ordinances ...................................... 115 b. Administrative Rules............................................ 116 c. Private Rules of Conduct ...................................... 117 d. Proximate Cause.................................................... 117 Case:

Vda. De Gregorio vs. Go Ching Bing .......................... 120 e. Negligence Per Se Rule Reconsidered.................. 123

B. Practice and Custom.................................................... 125

Case: xiii

S.D. Martinez vs. William Van Buskirk .................... 126

C. Compliance with Rules and Statutes ......................... 131 7. Degrees of Negligence........................................................ 131 Cases:

Negros Navigation Co., Inc. vs. CA............................. 132 Benguet Electric Cooperative, Inc. vs. CA.................. 135

8. Proof of Negligence............................................................. 138 A. Burden of Proof............................................................ 138 B. Presumptions............................................................... 139 C. Res Ipsa Loquitur ........................................................ 139 a. Rationale................................................................ 141 b. Cases when the doctrine was applied................... 142 c. Cases when doctrine was held inapplicable......... 148 d. Culpa contractual.................................................. 150 Cases:

Espiritu vs. Phil. Power and Dev. Co. ........................ 150 RCPI vs. CA ................................................................. 152

1. 2.

CHAPTER 3 — AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES Duty to Rescue ................................................................... 155 A. Duty to the Rescuer .................................................... 155 B. Duty to Rescue............................................................. 157 Owners, Proprietors and Possessors................................. 159 A. Trespassers................................................................... 159 a. Tolerated Possession ............................................ 160 b. Visitors................................................................... 161 c. Children and Attractive Nuisance Rule............... 163

Case:

Hidalgo Enterprises, Inc. vs. Balandan...................... 165 d. State of Necessity ................................................. 167

B. Use of Property that Injures Others .......................... 168 C. Liability of Proprietors of Buildings .......................... 169 3. Employers and Employees................................................. 170 A. Employers .................................................................... 170 B. Employees..................................................................... 171 xiv

Case:

Ma-ao Sugar Central Co. vs. Hon. CA ....................... 171

4. Banks ................................................................................ 173 Case:

Phil. Bank of Commerce vs. CA ................................. 175

5. Common Carriers............................................................... 176 6. Doctors ..........................................................................177 A. Standard of Care.......................................................... 178 B. Captain of the Ship Doctrine....................................... 180 C. Not Warrantors............................................................ 181 D. Proof.............................................................................. 183 E. Liability of Hospitals and Consultants....................... 188 Cases:

Cruz vs. Court of Appeals ........................................... 191

7. Lawyers............................................................................... 198 CHAPTER 4 — DEFENSES IN NEGLIGENCE CASES 1. Plaintiff’s Conduct and Contributory Negligence............. 200 A. Plaintiff’s Own Negligence as the Proximate Cause ................................................... 200 Cases:

Phil. Long Distance Tel. Co. vs. CA............................ 202 Kim vs. Phil. Aerial Taxi Co........................................ 205

B. Contributory Negligence.............................................. 207

Cases:

Rakes vs. The Atlantic Gulf and Pacific Co................ 209 Phoenix Construction, Inc. vs. IAC ............................ 220

2. Imputed Contributory Negligence..................................... 224 3. Fortuitous Event................................................................ 226 Cases:

National Power Corp. vs. CA ...................................... 228 Southeastern College, Inc. vs. CA............................... 233

4. Assumption of Risk............................................................. 237 xv

A. Requisites..................................................................... 237 B. Kinds............................................................................. 238 a. Express Waiver of the Right to Recover .............. 238 b. Implied Assumption ............................................. 239 (1) Dangerous Conditions..................................... 239

Cases:

Transporto vs. Mijares ................................................ 239 Murphy vs. Steeplechase Amusem*nt Co. ................. 242 (2) Contractual Relations .................................... 243 (3) Dangerous Activities ...................................... 245 (4) Defendant’s Negligence.................................. 245

5. Effect of Death.................................................................... 246 6. Prescription......................................................................... 246 A. When period commences............................................. 246 B. Doctrine of Relations or Relations Back Doctrine...... 247 7. Involuntariness .................................................................. 248 CHAPTER 5 — CAUSATION 1. Definition of Proximate Cause........................................... 250 2. Distinguished from Other Terms...................................... 251 A. Remote Cause............................................................... 251 Cases:

Gabeto vs. Araneta....................................................... 251

B. Nearest Cause.............................................................. 253 C. Concurrent Causes....................................................... 254

Cases:

Sabido vs. Custodio...................................................... 256 Vinluan vs. CA............................................................. 259

3. Tests of Proximate Cause................................................... 259 A. Cause in Fact Tests...................................................... 263 a. Philosophical Foundations ................................... 263 b. Main Tests............................................................. 267 B. Policy Tests .................................................................. 273 4. Tests Applied in the Philippines........................................ 275 A. Cause-in-Fact Tests..................................................... 276

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Case:

Pilipinas Bank vs. Hon. CA......................................... 277

B. Policy Tests................................................................... 279 a. Rule under the 1889 Civil Code............................ 279 b. Rule under the New Civil Code............................ 285 5. Cause and Condition.......................................................... 286 a. Types of Dangerous Conditions................................... 287 Case:

Rodrigueza vs. The Manila Railroad Co. ................... 288

6. Efficient Intervening Cause .............................................. 291 A. Definition and Concept................................................ 291 B. Foreseeable Intervening Cause................................... 294 a. Medical Treatment................................................ 294 Cases: 7. 8.

Vda. De Bataclan vs. Medina...................................... 295 Teague vs. Fernandez.................................................. 298 Urbano vs. Hon. IAC.................................................... 301

C. Unforeseen and Unexpected Act or Cause ................ 308 Contributory Negligence.................................................... 309 A. Plaintiff’s Negligence is the Cause.............................. 309 B. Compound Causes ....................................................... 309 C. Part of the Same Causal Set....................................... 309 D. Defendant’s Negligence is the Only Cause................. 311 Last Clear Chance.............................................................. 311 A. Alternative Views......................................................... 311 a. Prevailing View..................................................... 311 b. Minority View ....................................................... 312 c. Third View............................................................. 314 B. Cases When the Doctrine was Applied....................... 314

Case:

Glan People’s Lumber and Hardware vs. IAC........... 316

C. Cases When the Doctrine Was Held Inapplicable........................................................... 321 Cases:

Pantranco North Express, Inc. vs. Baesa................... 322 LBC Air Cargo vs. CA.................................................. 326 xvii

CHAPTER 6 — HUMAN RELATIONS: INTENTIONAL TORTS

1. Reason for Chapter on Human Relations......................... 330 2. Catch All Provisions........................................................... 331 A. Concepts ...................................................................... 331 B. Damage ........................................................................ 334 3. Abuse of Right ................................................................... 335 A. Elements....................................................................... 335 B. Examples ..................................................................... 336 Cases:

University of the East vs. Jader.................................. 342 Valenzuela vs. The Hon. CA ....................................... 347

4. Acts Contra Bonus Mores .................................................. 350 A. Gen. Concepts............................................................... 350 B. Breach of Promise To Marry....................................... 350 Cases:

Tanjanco vs. CA .......................................................... 352 Baksh vs. CA................................................................ 355

C. Seduction and Sexual Assault..................................... 364 Case: Cecilio Pe, et al. vs. Alfonso Pe ................................... 365

D. Desertion by a Spouse.................................................. 366 E. Trespass and Deprivation of Property........................ 367 a. Trespass to and/or Deprivation of Real Property .......................................................... 367 b. Trespass to or Deprivation of Personal Property .......................................................... 369 c. Disconnection of Electricity or Gas Service ........ 370

Case: Manila Gas Corp. vs. CA............................................. 370 F. Abortion and Wrongful Death..................................... 372 Case:

Geluz vs. CA................................................................. 372

G. Illegal Dismissal........................................................... 375 xviii

Case:

Globe Mackay Cable & Radio Corp. vs. CA ............... 376

H. Malicious Prosecution ................................................. 379 a. Definition and Statutory Basis............................. 379 b. Elements ............................................................... 379 [1] Malice ............................................................. 380 [2] Acquittal.......................................................... 380

Cases:

Globe Mackay Cable & Radio Corp. vs. CA ............... 381 Drilon vs. CA................................................................ 383 Manila Gas Corp. vs. CA ............................................ 387

I. Public Humiliation ...................................................... 391

Cases:

Rafael Patricio vs. The Hon. Oscar Leviste................ 393 Grand Union Supermarket, Inc. vs. Espino, Jr.......... 394 Carpio vs. Valmonte..................................................... 398 CHAPTER 7 — HUMAN DIGNITY

1. Privacy ............................................................................... 406 A. Constitutional Right to Privacy.................................. 406 a. Scope of Protection ............................................... 406 b. Basis of Liability for Damages ............................. 409 Case:

Blas Ople vs. Ruben Torres......................................... 410

B. Violation of the Right to Privacy as Independent Tort................................................... 418 a. Development as Tort............................................. 418 b. Persons Entitled to Relief .................................... 420 c. Reason for Protection............................................ 422 d. Reason for Rejection.............................................. 426 e. Standard ............................................................... 427 C. Classification of the Tort of Violation of the Right to Privacy..................................................... 428 a. Intrusion ............................................................... 428 [1] Forms of Intrusion ......................................... 429 [2] Intrusion in Public Places............................... 429 [3] Persons Protected ........................................... 430 xix

[4] Intrusion and Freedom of the Press.............. 430 [5] Intusion and Administrative Investigation............................................. 430 [6] Electronic Devices and other similar means........................................................ 431 [7] Public Records ................................................ 438 [8] Contract of Carriage....................................... 439 [9] E-Commerce.................................................... 440 Case:

Valmonte vs. Belmonte, Jr.......................................... 441 b. Publication of Private Facts ................................. 450 [1] Newsworthiness ............................................. 451 [2] Official Proceedings......................................... 452 [3] Official Functions............................................ 452

Cases: Ayer Productions Pty. Ltd. vs. Hon. Capulong .......... 452 Cordero, et al. vs. Buigasco, et al. .............................. 460 c. False Light ............................................................ 469 Case:

St. Louis Realty Corp. vs. CA...................................... 470 Concepcion vs. CA........................................................ 473 d. Commercial Appropriation of Likeness................ 477 [1] Concept ........................................................... 477 [2] Policy Considerations...................................... 478 [3] Personal Right................................................. 479

2. Interference With Family and Other Relations ............... 479 Case:

Tenchavez vs. Escaño ................................................. 481

3. Vexation and Humiliation.................................................. 485 A. Infliction of Emotional Distress.................................. 486 B. Discrimination.............................................................. 490 a. Discrimination in Labor ....................................... 491 b. Discrimination of Disabled................................... 491 C. Sexual Harassment ..................................................... 493 a. Parties ................................................................... 495 [1] Principal by Inducement................................ 496 [2] Employer or Head of Office............................. 496 xx

b. How Committed..................................................... 497 [1] Quid Pro Quo Cases........................................ 498 [2] Hostile Environment Cases............................ 498 [3] Civil Service Rules.......................................... 499 [4] Bases of Liability............................................. 501 [5] Standard of Conduct....................................... 504 Cases:

Jacutin v. People.......................................................... 504 Phil. Aeolus Automotive United Corp. vs. NLRC...... 509 CHAPTER 8 — TORTS WITH INDEPENDENT CIVIL ACTION

1. Concept ............................................................................... 514 2. Art. 32: Violation of Civil and Political Rights ................ 517 A. Rationale...................................................................... 518 B. How Committed........................................................... 519 C. Persons Liable.............................................................. 520 a. Superior Officers ................................................... 522 b. Subordinate Officers ............................................. 523 D. State Immunity ........................................................... 524 E. Suspension of the Privilege of the Writ of Habeas Corpus ........................................................ 524 F. Examples of Violations ............................................... 525 a. Due Process ........................................................... 525 b. Right Against Searches and Seizure ................... 526 Case: Aberca, et al. vs. Gen. Ver .......................................... 527 3. Art. 33: Defamation, Fraud & Physical Injuries.............. 535 A. Defamation................................................................... 536 a. Definitions.............................................................. 536 b. Reason for liability ............................................... 537 c. Requisites............................................................... 537 [1] The Imputation is Defamatory....................... 538 [2] Publication ...................................................... 540 [3] Malice ............................................................. 541 [4] Identification of the Defamed......................... 542 [4.1] Group Libel .......................................... 544 [4.2] Deceased............................................... 546 d. Persons Liable ...................................................... 546 e. Proof of Truth........................................................ 547 xxi

f. Defenses................................................................. 548 [1] Absolutely Privileged Matters ....................... 550 [2] Qualified Privilege.......................................... 551 [2.1] Complaints Against Public Officials........................................... 554 [2.2] Report to a Superior Officer ................ 554 [2.3] Allegations in Pleadings...................... 555 [2.4] Publication of a Pleading..................... 555 [2.5] Fair Comment...................................... 559 Cases:

MVRS Publications vs. IDCPI..................................... 561 Borjal vs. CA ................................................................ 571 Manuel vs. Paño .......................................................... 586

B. Fraud............................................................................ 594

Case:

Silva vs. Peralta .......................................................... 596

C. Physical Injuries ......................................................... 600 4. Art. 34: Neglect of Duty .................................................... 603 CHAPTER 9 — CIVIL LIABILITY ARISING FROM DELICT 1. Basis of Liability................................................................. 604 2. Persons Liable.................................................................... 606 3. What is Included in Civil Liability.................................... 608 4. Proximate Cause ............................................................... 609 5. Circ*mstances Affecting Civil Liability............................ 609 A. Justifying and Exempting Circ*mstances ................. 609 Case:

Tan vs. Standard Vacuum Oil Co. ............................. 613

B. Aggravating and Mitigating Circ*mstances ............. 617 6. Extinction and Survival of Liability.................................. 617 A. Effect of Death.............................................................. 618 B. Effect of Pardon............................................................ 618 Case:

People vs. Bayotas........................................................ 619

7. Concurrence of Causes of Action and Remedies .............. 622 A. Concurrence of Causes of Action ................................ 622 B. Remedies ..................................................................... 626 xxii

a. The Rules .............................................................. 626 b. History and Justification of Reservation Requirement ................................................... 632 8. Prejudicial Question .......................................................... 638 CHAPTER 10 — THE DEFENDANTS 1. 2.

Concurrent Negligence or Acts ......................................... 640 A. Joint Tort-feasors ........................................................ 640 B. Motor Vehicle Mishaps................................................ 642 Vicarious Liability ............................................................. 643 A. General Concepts......................................................... 643 B. Statutory Provisions.................................................... 645 a. Civil Code and Family Code ................................. 645 b. Revised Penal Code .............................................. 647 C. Parents and Other Persons Exercising Parental Authority................................................................ 649 a. New Civil Code and Family Code ........................ 649 [1] Liability for Acts of Minors ............................ 649 [1.1] Basis of Liability ................................. 649 [1.2] Persons Liable ..................................... 649 [1.3] Nature of Liability................................ 650 [1.4] Other Requirements............................. 651 [2] Liability for Acts of Children of Majority Age ............................................ 651 b. Civil Liability Ex Delicto....................................... 653 c. Defense of Exercise of Due Diligence .................. 654 Cases:

Cuadra vs. Monfort ..................................................... 656 Tamargo vs. CA ........................................................... 657 Libi vs. IAC .................................................................. 661

D. Liability of Guardians of Incapacitated Adults.......... 664 E. Schools, Teachers and Administrators ...................... 666 a. Family Code .......................................................... 666 [1] Persons Liable ................................................ 666 [2] Supervision, Instruction or Custody ............. 667 b. Civil Code .............................................................. 669 [1] Effect of Family Code ..................................... 669 [2] Rules Under Art. 2180.................................... 670 [3] Other Bases of Liability of Schools ............... 671 c. Liability of Teachers under the Revised Penal Code ...................................................... 672 xxiii

Cases:

Amadora vs. CA........................................................... 672 PSBA vs. CA................................................................. 681 St Mary’s Academy v. Carpituous............................... 685

F. Employers..................................................................... 687 a. Liability of Employers under the Civil Code ....... 688 [1] Proof of Employer-Employee Relationship.... 690 [2] Determination of Employer-Employee Relationship.............................................. 692 [2.1] Working Scholars................................. 693 [2.2] Labor-only Contracting........................ 694 [3] Performance of Assigned Task....................... 697 [4] Presumption.................................................... 701 [5] Defense ........................................................... 702 [6] Solidary Liability............................................ 703 [7] Registered Owner Rule................................... 704 Cases:

Valenzuela vs. CA........................................................ 713 Sps. Africa vs. Caltex (Phils.)...................................... 716 Pilipinas Shell Petroleum vs. CA................................ 719

b. Liability of Employers under the Revised Penal Code ...................................................... 723 [1] Requisites........................................................ 723 [1.1] Industry or Work.................................. 723 [1.2] Conviction and Binding Effect of Findings...................................... 723 [1.3] Performance of Assigned Task............ 724 [1.4] Insolvency............................................. 724 [2] Enforcement of Subsidiary Liability ............. 726 G. Innkeepers and Hotelkeepers ..................................... 726 H. Partnership.................................................................. 727 I. Spouses ........................................................................ 728 a. Absolute Community Property............................. 728 b. Conjugal Partnership of Gains............................. 728 c. Regime of Separation of Property......................... 729 J. State.............................................................................. 729 K. Municipal Corporations............................................... 734 3. Public Officers .................................................................... 735 CHAPTER 11 — STRICT LIABILITY xxiv

1. Animals............................................................................... 737 Case:

Vestil v. IAC................................................................. 740

2. Falling Objects ................................................................... 744 3. Liability of Employers........................................................ 744 4. Nuisance ............................................................................ 745 A. Definition...................................................................... 745 B. Kinds ............................................................................ 746 C. Strict Liability and Persons Liable ............................ 748 D. Abatement ................................................................... 748 a. Public Nuisance .................................................... 748 b. Private Nuisance .................................................. 749 c. Fire Code of the Philippines.................................. 749 d. Liability for Damages............................................ 750 E. Prescription and Estoppel........................................... 750 Case:

Velasco vs. Manila Electric Co.................................... 751 CHAPTER 12 — PRODUCT AND SERVICE LIABILITY

1. Statutory Basis .................................................................. 758 2. Alternative Theories........................................................... 761 A. Fraud or Misrepresentation........................................ 761 a. Civil Code .............................................................. 761 b. Consumer Act ....................................................... 762 B. Warranties.................................................................... 764 a. Civil Code .............................................................. 764 b. Consumer Act ....................................................... 767 [1] Formalities...................................................... 767 [2] Duration ......................................................... 768 [3] Records and Reports....................................... 768 [4] Liability of Retailers....................................... 769 [5] Enforcement of Warranties and Breach........ 769 [6] Lack of Privity................................................. 770 C. Negligence ................................................................... 770 D. Delict ............................................................................ 773 E. Strict Liability.............................................................. 773 a. Civil Code .............................................................. 773 b. Consumer Act ....................................................... 778 xxv

[1] Privity not Required ...................................... 780 [2] Persons Liable................................................. 780 [3] Reasons why Liability is Imposed on Manufacturers..................................... 781 [4] Meaning of Defective Product ....................... 782 [4.1] Manufacturing Defect ......................... 783 [4.2] Design Defect ....................................... 783 [4.3] Packaging and Presentation................ 788 [4.4] Lack of Warning .................................. 788 Duty to Warn ....................................... 788 Knowledge of the Manufacturer.......... 790 [5] Proof of Defect ................................................ 790 [6] Defenses........................................................... 791 CHAPTER 13 — BUSINESS TORTS 1.

Interference With Contract ............................................... 795 A. Statutory Provision and Rationale ............................. 795 B. History of the Rule....................................................... 795 C. Elements....................................................................... 798 a. Contract ................................................................ 798 b. Malice ................................................................... 798 c. Procurement.......................................................... 799 D. Legal Justification........................................................ 799 E. Extent of Liability........................................................ 800

Cases: 2. 3.

Philip Yu vs. CA........................................................... 801 Gilchrist vs. Cuddy...................................................... 804 Daywalt vs. La Corporacion........................................ 810 So Ping Bun vs. CA...................................................... 820

Interference With Prospective Advantage........................ 823 Unfair Competition............................................................ 824 A. Passing Off and Disparagement of Products ............. 825 B. Interference ................................................................. 826 C. Misappropriation......................................................... 826 D. Monopolies and Predatory Pricing ............................. 828

Cases: Shell Company of the Phils. Ltd. vs. Insular Petroleum Refining Co., Ltd. ............................... 829 4. Securities Related Torts..................................................... 835 xxvi

A. Fraud............................................................................ 835 B. Misstatements ............................................................. 837 a. False Registration Statement............................... 837 [1] The Plaintiff.................................................... 837 [2] The Defendants............................................... 838 [3] Defenses........................................................... 838 [4] Damages.......................................................... 839 [4.1] Nature and Extent............................... 839 [4.2] Joint and Several Liability.................. 839 b. Prospectus and the like ........................................ 839 c. Statute of Limitation............................................. 840 CHAPTER 14 — DAMAGES

1. Definition and Concept....................................................... 843 2. Damnum Absque Injuria.................................................... 843 Case:

Sps. Custodio vs. CA.................................................... 845

3. Kinds of Damages .............................................................. 848 A. Actual or Compensatory.............................................. 849 a. Kinds ................................................................... 850 b. Extent and Measure of Damages.......................... 850 c. Certainty................................................................ 851 d. Damage to Property............................................... 852 e. Personal Injury and Death.................................... 854 Case:

Manzanares v. Moreta................................................. 855 [1] Fixed Damages................................................ 865 [2] Loss of Earning Capacity................................ 866 Formula........................................................... 866 Net Earnings .................................................. 867 Living Expenses.............................................. 869 Non-working Victims...................................... 869 Life Expectancy .............................................. 874 Alternative Formula ...................................... 875 Inflation and Reduction to Present Worth .... 876 f. Permanent Incapacity........................................... 877 g. Loss of Profits ....................................................... 877

Case: xxvii

Algarra vs. Sandejas.................................................... 878 h. Attorney’s Fees ..................................................... 886 i. Interests................................................................. 888 j. Mitigation of Liability........................................... 890 [1] Avoidable Consequences................................. 891

Case:

Velasco vs. Manila Electric Co.................................... 892

B. Moral Damages............................................................ 895 a. Concept................................................................... 895 b. Proof and Proximate Cause ................................. 897 c. Cases when Moral Damages are allowed............. 897 Unfounded Suits............................................. 901 Labor Cases..................................................... 901 Criminal Taking of Life.................................. 902 d. Factors to Consider in Determining Amount ...... 902 e. Persons who may Recover .................................... 906 f. Corporations.......................................................... 906 C. Nominal Damages........................................................ 907 D. Temperate Damages.................................................... 910

Cases:

Ramos vs. CA............................................................... 912 Araneta vs. Bank of America...................................... 914

E. Liquidated Damages.................................................... 919 F. Exemplary or Corrective Damages............................. 919

Notes ....................................................................................... 923 Subject Index............................................................................. 938

xxviii

CHAPTER 1

GENERAL CONSIDERATIONS 1.

TORT DEFINED

The word “tort’’ is taken directly from the French and is a derivation of the Latin word ‘torquere’ meaning ‘to twist.’ In common law, tort is an unlawful violation of private right, not created by contract, and which gives rise to an action for damages. It is an act or omission producing an injury to another, without any previous existing lawful relation of which the said act or omission may be said to be a natural outgrowth or incident. (Robles vs. Castillo, 61 O.G. 1220, 5 C.A.R. [2s] 213). It is also defined as a “private or civil wrong or injury, other than breach of contract,’’ for which the court will provide a remedy in the form of an action for damages. It is a violation of a duty imposed by general law or otherwise upon all persons occupying the relation to each other which is involved in a given transaction. There must always be violation of some duty that must arise by operation of law and not by mere agreement of the parties. (Black’s Law Dictionary, 5th Ed., p. 1335, citing Coleman vs. California Yearly Meeting of Friends Church, 27 Cal. App. 2d 579, 81 P. 2d 469, 470). It is a legal wrong committed upon person or property independent of contract. (ibid.). As a general legal classification, it encompasses a number of different civil causes of action providing a private remedy, almost always in the form of money damages, for an injury to a person caused by the tortious conduct of another. (Edward J. Kionka, Torts, 1988 Ed., p. 92). Each tort is separately named and defined. Although some rules or principles are common to various torts or groups of torts, there is no universal formula for tort liability. (ibid.). As thus defined, tort in common law includes intentional torts, negligence, and strict liability in tort. Intentional torts include con1

2

TORTS AND DAMAGES

duct where the actor desires to cause the consequences of his act or believes the consequences are substantially certain to result from it. Intentional torts include assault, battery, false imprisonment, defamation, invasion of privacy and interference of property. Negligence, on the other hand, involves voluntary acts or omissions which result in injury to others, without intending to cause the same. The actor fails to exercise due care in performing such acts or omissions. There is strict liability in tort where the person is made liable independent of fault or negligence upon submission of proof of certain facts. 2.

PHILIPPINE TORT LAW

A. SOURCES.

The New Civil Code is the primary statute that governs torts in the Philippines. Article 1157 of the New Civil Code includes quasidelict as a source of obligation. This source of obligation is classified as “extra-contractual obligation” and is governed by Chapter XVII, Chapter 2 of the Code consisting of Articles 2176 to 2194. Other provisions that are considered “tort” provisions can be found in other titles of the Code and in special laws. These tort provisions, just like the rest of the provisions of the Civil Code, are from Spanish, French as well as Anglo-American law. The Code Commission explained:

“The project of the Civil Code is based upon the Civil Code of 1889, which is of Spanish and French origin. The proposed Code has been strengthened and enriched with new provisions chosen with care from the codes, laws and judicial decisions of various countries as well as from the works of jurists of various nations. Among them are: Spain, the various States of the American Union, — especially California and Louisiana, — France, Argentina, Germany, Mexico, Switzerland, England, and Italy. In addition, there are a number of articles which restate the doctrines laid down by the Supreme Court of the Philippines. Finally, there are hundreds of amendments and new rules agreed upon by the Commission originally and not having in mind any code, decision or treatise, in order to consecrate Filipino customs, or to rectify unjust or unwise provisions heretofore in force, or to clarify doubtful articles and clauses in the present Code, or to afford solutions to numerous questions and situations not foreseen in the Civil Code of 1889 and other laws. The adoption of provisions and precepts from other countries is justified on several grounds: (1) The Philippines, by its contact with Western culture from the last four centuries, is a rightful beneficiary of the Ro-

GENERAL CONSIDERATIONS

man Law, which is common heritage of civilization. For many generations that legal system as developed in Spain has been the chief regulator of the juridical relations among Filipinos. It is but natural and fitting, therefore, that when the young Republic of the Philippines frames its new Civil Code, the main inspiration should be the Roman law as unfolded and adapted in Spain, France, Argentina, Germany and other civil law countries. (2) The selection of rules from the Anglo-American law is proper and advisable: (a) because of the element of American culture that has been incorporated into Filipino life during the nearly half a century of democratic apprenticeship under American auspices; (b) because in the foreseeable future, the economic relations between the two countries will continue; and (c) because the American and English courts have developed certain equitable rules that are not recognized in the present Civil Code. (3) The concepts of right and wrong are essentially the same throughout the civilized world. Provided, the codifier exercises prudence in selection and bears in mind the peculiar conditions of his own country, he may safely draw rules from the codes and legal doctrines of other nations.” (Report of the Code Commission, pp. 3-5).

It is therefore not surprising that various torts in other countries are likewise recognized as such in this jurisdiction. It is also not surprising that the Supreme Court borrows heavily from the decisions of the Court in other countries especially Spain and the United States. In deciding tort cases, it is not unusual for the Supreme Court to rely, as it often relies, on the decisions of the said foreign courts summarized and explained in the works of leading legal writers like Manresa, Prosser, Keeton, Cooley, Harper and James as well as the American Law Institute’s Restatement (Second) of Tort. The Code Commission explained that Roman Law served as the main inspiration of the New Civil Code. The influence of Roman Law is quite evident in the field of quasi-delict. It should be noted that the “Institutes’’ in Roman law added the category of obligations that arise quasi ex delicto. Four are listed within such category: a) liability of a judge who misconducts a case or gives a wrong decision, b) the liability of an occupier of a building for double the damage caused by anything thrown or forced out of the building, no matter by whom, on to a public place, c) liability of the occupier if he keeps any object suspended from the building which would do damage if it fell, and d) the liability of the shop keeper, innkeeper or keeper of a stable for any theft or damage caused by slaves or employees, or in

4

TORTS AND DAMAGES

case of the innkeepers, of permanent residents. (Barry Nicholas, An Introduction to Roman Law, 1962 Ed., pp. 224-225). The second tort in the list of obligations arising quasi ex delicto in Roman Law is recognized in Article 2193 of the New Civil Code. Article 2193 provides that “the head of a family that lives in a building or part thereof is responsible for damages caused by things thrown or falling from the same.” On the other hand, the last liability is recognized in the New Civil Code provisions on the contract of deposit. Article 2000 provides that hotel-keepers are liable for the loss of or injury to the personal property of guests caused by the servants or employees of the hotels or inns. The liability is now part of contract law rather than tort law.

B.

SCOPE AND APPLICABLE LAWS.

The Code Commission which prepared the draft of the New Civil Code of the Philippines contemplated the possibility of adopting the word “tort” in lieu of quasi-delict as a separate source of obligation. The Commission later decided against the use of the word “tort” because the members believed that such use would not be accurate because “tort” in Anglo-American law “is much broader than the Spanish-Philippine concept of obligations arising from non-contractual negligence. ‘Tort’ in Anglo-American jurisprudence includes not only negligence, but also intentional criminal acts such as assault and battery, false imprisonment and deceit. (Report of the Code Commission, pp. 161-162).” The general plan sought to be implemented in the New Civil Code was for intentional acts to be governed by the Revised Penal Code. However, the New Civil Code as enacted and other statutes clearly deviate from the general plan which the Commission had articulated. For instance, although the word tort does not appear in the New Civil Code, there are statutory provisions that use the word thereby recognizing tort as a source of liability. The provisions that recognize tort liability and use the term “tort” include Sections 22 and 100 of the Corporation Code, Art. 68 of the Child and Youth Welfare Code and Sec. 17(a)(6) of the Ship Mortgage Decree. The Supreme Court had, in fact, repeatedly used the term tort in deciding cases involving negligent acts or omissions as well as those involving intentional acts. In a recent case, the Supreme Court broadly defined tort as a breach of legal duty. The Supreme Court explained that tort essentially consists in the violation of a right given or omission of statutory duty imposed by law. (Naguiat vs. NLRC,

GENERAL CONSIDERATIONS

269 SCRA 564 [1997]). The New Civil Code as enacted and the Report of the Code Commission itself, reveal an evident intent to adopt the common law concept of tort and to incorporate the different, intentional and unintentional common law torts in the New Civil Code. Tortious conduct for which civil remedies are available are embodied in different provisions of the New Code. For instance, the Code Commission explained that the justifications for the inclusion of independent civil actions (Arts. 32, 33, 34, 35 and 36 of the Civil Code) are: “In England and the United States, the individual may bring an action in tort for assault and battery, false imprisonment, libel and slander, deceit, trespass, malicious prosecution, and other acts which also fall within criminal statutes. This independent civil action is in keeping with the spirit of individual initiative and the intense awareness of one’s individual rights in those countries.” (Report of the Code Commission, p. 47).

The same intent to incorporate Anglo-American rules is present in the rules regarding proximate cause and contributory negligence (Article 2199, NCC) as the Code Commission explained that the rules are a “blending of American and Spanish-Philippine law.” (Report of the Code Commission, p. 163).

a.

Catch-all Provisions.

The intent to adopt the expanded common law concept of intentional and unintentional tort is more evident in Articles 19, 20, and 21 of the Civil Code which state: “Art. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.’’

The above-quoted provisions enlarge the concept of tortious acts and embody in our law the Anglo-American concept of tort. (Eduardo P. Caguioa, Comments and Cases on Civil Law, Vol. I, p. 29). It introduces malice in the commission of torts. Article 20 is the “general sanction for all other provisions of law which do not especially provide

6

TORTS AND DAMAGES

their own sanction” and “is broad enough to cover all legal wrongs which do not constitute violations of contract.” (Albenson Enterprises Corp. vs. Court of Appeals, 217 SCRA 16 [1993], citing Tolentino, Civil Code of the Philippines, Commentaries and Jurisprudence, Vol. I, p. 69). Under such broad concept of torts, Philippine laws include the following torts, some of which are also considered torts in American law: a) Defamation, b) Fraud, c) Physical Injuries, d) Violation of Constitutional Rights, e) Negligence, f) Interference with Contractual Relations, g) Violation of Privacy, h) Malicious Prosecution, i) Product liability, j) Strict liability for possession of animals, k) Abuse of right (Article 19, Civil Code), and l) Acts which violate good morals and customs. (Article 21, NCC). Tort is even broad enough to include civil liability arising from criminal liability. (6 Reyes and Puno 157). Articles 19, 20 and 21 of Civil Code are likewise “catch-all” provisions that serve as basis of any imaginable tort action. Under the Anglo-American law, each tort is usually named and defined. On the other hand, Articles 19, 20 and 21 of the New Civil Code provide for general concepts that make persons liable for every conceivable wrongful acts. There is a general duty owed to every person not to cause harm either willfully or negligently. Articles 19, 20, and 21 are provisions on human relations that “were intended to expand the concept of torts in this jurisdiction by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to specifically provide in the statutes.” (Philippine National Bank vs. The Court of Appeals, et al., 83 SCRA 237, citing Commissioner’s Note, Capistrano, 1 Civil Code of the Philippines, 1950 Ed., p. 29). Under Art. 21, taken together with Articles 19 and 20, “the scope of civil wrongs has been greatly broadened; it has become much more supple and adequate than Anglo-American law on torts” (Albenson Enterprises, supra, citing Tolentino). The statutory provisions, as they are now worded, afford relief against novel forms of misconduct when necessary and appropriate. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles. (ibid.).

b.

Expanded Scope of Quasi-Delict.

It should be noted, however, that even prior to enactment of the New Civil Code, the Supreme Court had already adopted, in some of its decisions, a broad concept of torts using Art. 1902 of the old Civil Code. The law on quasi-delict under the Civil Code of Spain which was then in force states:

GENERAL CONSIDERATIONS

“Art. 1902. Any person who by any act or omission causes damage to another by his fault or negligence shall be liable for the damage so done.”

The Supreme Court applied the above-quoted provision to an alleged case of malicious interference in the performance of contract in the 1919 case of Daywalt vs. La Corporacion de los Padres Agustinos Recoletos (G.R. No. 13505, February 4, 1919, 39 Phil. 587), stating that: “Article 1902 of the Civil Code declares that any person who by any act or omission, characterized by fault or negligence, causes damage to another shall be liable for the damage so done. Ignoring so much of this article as relates to liability of negligence, we take the rule to be that a person is liable for damage done to another by any culpable act; and by “culpable act’’ we mean any act which is blameworthy when judged by accepted legal standards. The idea thus expressed is undoubtedly broad enough to include any rational conception of liability for the tortious acts likely to be developed in any society. x x x”

The same provision was applied by the Supreme Court to a tort case involving fraud. (Silva vs. Peralta, 110 Phil. 57). The plaintiff in the said case was induced to live with one of the defendants by deceiving her that he was not married. The defendant was made liable for all the consequences of such fraud on the basis of Article 1902 of the old Civil Code. It is noteworthy that the same broad interpretation of quasidelict had been given to Article 2176, the provision on quasi-delict under the New Civil Code. The Supreme Court observed in a number of cases that Article 2176 includes intentional acts. (Elcano and Elcano vs. Hill and Hill, 77 SCRA 98; Virata vs. Ochoa, 81 SCRA 472; Andamo vs. Court of Appeals, 191 SCRA 195; Dulay vs. Court of Appeals, April 31, 1995; Wylie vs. Rarang, 209 SCRA 327). The Supreme Court ruled in Elcano that: “Contrary to an immediate impression one might get upon a reading of the foregoing excerpts from the opinion in Garcia — that the concurrence of the Penal Code and the Civil Code therein referred to contemplate only acts of negligence and not intentional voluntary acts — deeper reflection would reveal that the thrust of the pronouncements therein is not so limited, but that in fact it actually extends to fault or culpa. This can be seen in the reference made therein to the Sentence of the Supreme Court of Spain of February 14, 1919, supra, which involved a case of fraud or estafa, not a negligent act. Indeed, Article 1093 of the Civil Code

8

TORTS AND DAMAGES

of Spain, in force here at the time of Garcia, provided textually that obligations “which are derived from acts or omissions in which fault or negligence, not punishable by law, intervene shall be the subject of Chapter II, Title XV of this book (which refers to quasi-delicts).” And it is precisely the underline qualification, “not punishable by law,” that Justice Bocobo emphasized could lead to an undesirable construction or interpretation of the letter of the law that “killeth, rather than the spirit that giveth life” hence, the ruling that “(W)e will not use the literal meaning of the law to smother and render almost lifeless a principle of such ancient origin and such full-grown development as culpa aquiliana or cuasi-delito, which is conserved and made enduring in Articles 1902 to 1910 of the Spanish Civil Code.” And so, because Justice Bocobo was Chairman of the Code Commission that drafted the original text of the new Civil Code, it is to be noted that the said Code, which was enacted after the Garcia doctrine, no longer uses the term, “not punishable by law,” thereby making it clear that the concept of culpa aquiliana includes acts which are criminal in character or in violation of the penal law, whether voluntary or negligent. Thus, the corresponding provisions to said Article 1093 in the new code, which is Article 1162, simply says, “Obligations derived from quasi-delicts shall be governed by the provisions of Chapter 2, Title XVII of this Book, (on quasi-delicts) and by special laws.” More precisely, a new provision, Article 2177 of the new code provides: “ART. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.” According to the Code Commission: “The foregoing provision (Article 2177) though at first sight startling, is not so novel or extraordinary when we consider the exact nature of criminal and civil negligence. The former is a violation of the criminal law, while the latter is a “culpa aquiliana’’ or quasi-delict, of ancient origin, having always had its own foundation and individuality, separate from criminal negligence. Such distinction between criminal negligence and “culpa extra-contractual’’ or “cuasidelito’’ has been sustained by decision of the Supreme Court of Spain and maintained as clear, sound and perfectly tenable by Maura, an outstanding Spanish jurist. Therefore, under the proposed Article 2177, acquittal from an accusation of criminal negligence, whether on reasonable doubt or not, shall not be a bar to a subsequent civil action, not for civil liability arising from criminal negligence, but for damages due to a quasi-delict or “culpa aquiliana.’’ But said article forestalls a double recovery.” (Report of the Code Commission, p. 162).

GENERAL CONSIDERATIONS

Although, again, this Article 2177 does seem to literally refer to only acts of negligence, the same argument of Justice Bacobo about construction that upholds “the spirit that giveth life” rather than that which is literal that killeth the intent of the lawmaker should be observed in applying the same. And considering that the preliminary chapter on human relations of the new Civil Code definitely establishes the separability and independence of liability in a civil action for acts criminal in character (under Articles 29 to 32) from the civil responsibility arising from crime fixed by Article 100 of the Revised Penal Code, and, in a sense, the Rules of Court, under Sections 2 and 3(c), Rule 111, contemplate also the same separability, it is “more congruent with the spirit of law, equity and justice, and more in harmony with modern progress,” to borrow the felicitous relevant language in Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. 359, to hold, as We do hold, that Article 2176, where it refers to “fault or negligence,” covers not only acts “not punishable by law” but also acts criminal in character, whether intentional and voluntary or negligent. Consequently, a separate civil action lies against the offender in a criminal act, whether or not he is criminally prosecuted and found guilty or acquitted, provided that the offended party is not allowed, if he is actually charged also criminally, to recover damages on both scores, and would be entitled in such eventuality only to the bigger award of the two, assuming the awards made in the two cases vary. In other words, the extinction of civil liability referred to in Par. (e) of Section 3, Rule 111, refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused. Briefly stated, We here hold, in reiteration of Garcia, that culpa aquiliana includes voluntary and negligent acts which may be punishable by law.’’

It should be noted that the cases which adopt the view that Article 2176 covers intentional acts did so in order to justify the application of Article 2180 on the vicarious liability of parents and employers. With respect to parents, however, the distinction is no longer material because their vicarious liability under Article 221 of the Family Code covers intentional acts of their children. c. View that Art. 2176 is limited to negligence. The view that intentional acts fall within the purview of Article 2176 on quasi-delict is subject to a minority opinion to the contrary. There are authorities for the view that quasi-delict refers merely to negligenct acts. (Padilla, Civil Code Annotated, Vol. VII-A, p. 37).

10

TORTS AND DAMAGES

Under this view, quasi-delict is hom*ologous but not identical to tort of common law. (Manila Railroad Co. vs. Cia Transatlantica, 38 Phil. 875). In Cangco vs. Manila Railroad Company (38 Phil. 768 [1918]), the Supreme Court cited Manresa (Vol. 8, p. 68) who declared that the liability arising from extra-contractual culpa is always based upon a voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage to another. The proposition is that the entire notion of quasi-delict is founded on fault or negligence which excludes all notions of intent, deliberateness, bad faith or malice. It is opined that the insertion of the word “intentional” in the above-cited Andamo case is an inaccurate obiter and the same should be read as “voluntary.” (Padilla, p. 38). Chief Justice Davide (then Associate Justice) expressed the same view in Gashem Shookat Baksh vs. Court of Appeals (219 SCRA 115 [1993]). He observed that Article 2176 “is limited to negligent acts or omissions and excludes the notion of willingness or intent. Quasidelict, known in Spanish legal treatises as culpa aquiliana, is a civil law concept while torts is an Anglo-American or common law concept. Torts is much broader than culpa aquiliana because it includes not only negligence, but intentional criminal acts as well as assault and battery, false imprisonment and deceit. In the general scheme of the Philippine legal system envisioned by the Commission responsible for drafting the New Civil Code, intentional and malicious acts, with certain exceptions, are to be governed by the Revised Penal Code while negligent acts or omissions are to be covered by Article 2176 of the Civil Code. In between these opposite spectrums are injurious acts which in the absence of Article 21, would have been beyond redress.” 3.

PURPOSES OF TORT LAW

A.

MAJOR PURPOSES.

The major purposes of tort law include the following: (1) to provide a peaceful means for adjusting the rights of parties who might otherwise take the law into their own hands; (2) deter wrongful conduct; (3) to encourage socially responsible behaviour; and (4) to restore injured parties to their original condition, insofar as the law can do this, by compensating them for their injury. (William L. Prosser, John W. Wade, Victor E. Schwartz, Cases and Materials on Torts, 1988 Ed., p.1). In one case, the Supreme Court observed that the governing law (Article 2176, Civil Code) seeks to reduce the risks and burden of living in the society and to allocate them among the members of society. (Phoenix Construction, Inc. vs. Intermediate Appellate Court, 148 SCRA 353 [1987]).

GENERAL CONSIDERATIONS

B.

BALANCING OF CONFLICTING INTERESTS.

The purposes specified above directly serve the general purpose of protecting different interests in the society. This is consistent with the view that civil law is the mass of precepts that determine or regulate relations that exist between members of the society for the protection of private interests. (Quisaba vs. Sta. Ines-Melale Veneer and Plywood, Inc., 58 SCRA 771, August 30, 1974, citing 1 Sanchez Roman 3). Dean Wright explained that: “Arising out of the various ever-increasing clashes of activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the person or property of others – in short doing all the things that constitute modern living – there must of necessity be losses, or injuries of many kind sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another . . . The study of the law of torts is, therefore, a study of the extent to which the law will shift the losses sustained in modern society from the person affected to the shoulder of him who caused the loss or more realistically in many fields, to the insurance companies who are increasingly covering the many risks involved in the conduct of business and individual activities.” (Wright, Cases on the Law of Torts, p. 1).

When the law provides for compensation to another for personal injuries, the law is protecting the person’s interest over his body. A person is entitled to the physical integrity of his or her body; if the integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due and assessable. (Gatchalian vs. Delim, 203 SCRA 126, 137 [1991]). However, although tort law is mainly concerned with providing compensation for personal injury and property damage caused by negligence, it also protects other interests such as reputation, personal freedom, enjoyment of property, and commercial interests. (A Dictionary of Law, Oxford University Press, 1994, p. 401). The interests protected under the Civil Code and example of provisions which protect such interests are: Interests Protected

Torts and/or Provisions Involved

Person Freedom from contact

Physical Injuries (Art. 32), Quasi-

12

TORTS AND DAMAGES

Delict (Art. 2176) Freedom from distress

Moral Damages (Arts. 2217-2220)

Dignity Reputation

Defamation (Art. 33)

Privacy

Violation of Privacy (Art. 26)

Freedom from wrongful actions Malicious Prosecution (Arts. 20 and 21) Property Real Property

Nuisance (Arts. 694-770) QuasiDelict (Art. 2176)

Economic/Pecuniary Contracts

Interference with contractual rights (Art. 1314)

Freedom from Deception

Fraud (Art. 33)

4.

FUNDAMENTAL PRINCIPLES

The above-mentioned purposes are sought to be achieved in the pursuit of the fundamental principles which are being upheld under the New Civil Code. These fundamental principles include, equity, justice, democracy, and respect for human dignity.

A.

EQUITY AND JUSTICE.

In drafting the Code, the Code Commission placed equity and justice above strict legalism. The provisions of the Code “uphold the spirit that giveth life rather than the letter that killeth.” (Report, p. 26). These general considerations are embodied in Articles 21 and 26 of the Civil Code. Thus, justice and equity demand that persons who may have been damaged by the wrongful or negligent act of another are compensated. Acting with justice involves the duty to indemnify for damage caused under Arts. 20, 21, 28, 27; to indemnify by reason of unjust enrichment under Arts. 22 and 23 (See Perez vs. Pomar, 2 Phil. 682; Bonzon vs. Standard Oil, 27 Phil. 141); and to protect the weaker party under Article 24. (Jose B.L. Reyes and Ricardo C. Puno, An Outline of Philippine Civil Law, Vol. 1, 1956 Ed., pp. 39-43). In fact, one Code Commissioner has commented that the whole chapter

GENERAL CONSIDERATIONS

on human relations under the Civil Code provides for guides for human conduct which should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice. (Francisco R. Capistrano, Civil Code of the Philippines, Vol. I, 1950 Ed., p. 28). Consistently, in the adjustment of the conflicting interests of individuals within the society, “some norm or standard must be available whereby the compromise or adjustment may take place. This notion is concealed in the philosophic notion of justice. Interests are to be adjusted in a manner that is just.” (Harper on Torts, pp. 3-4). Law is conceived as a justice-seeking process and particular laws are therefore evaluated on the basis of their contribution to the ideal of justice. (Bill Shaw and Art Wolfe, The Structure of Legal Environment, 1991 Ed., pp. 22-23). In The Republic of Plato (I. 331E-336A, F. Cornford trans. 1945), Plato recorded an age-old dialouge where Socrates elicited from Polemarches an entry-level definition of justice: giving people their due. The same concept of justice is also reflected in the Roman maxim Juris Praecepta Sunt Hec, Honeste Vivere, Alterum Non Laedare, Suum Cuique Tribuere — the precepts of law are these, to live honestly, not to injure another, and to give to each one his due — and the maxim Justicia Est Constans et Perpetua Voluntas Jus Suum — Justice is a steady and unceasing disposition to render every man his due. (Isabelo C. Moreno, Handbook of Legal Maxims, 1955 Ed., pp. 193 and 300, citing Justinian and Corpus Juris). Such concept of justice pervades two levels: social and individual. “In our society, we can find two levels of justice, the social and individual level, and each of these has at least two components. In the social level we speak of justice as distributive and retributive. Distributive addresses the allocation of social goods and bads: wealth-poverty, income-employment, power-powerless, and so on. These issues are dealt with by the Congress and state legislatures. Distributive justice is a principal concern of our democratic institutions. Retributive justice, or retribution, refers to sanctions or penalties that are applied to those who engage in certain kinds of antisocial behavior; for example, murder, rape, and kidnapping. The criminal statutes x x x are examples of this type of justice. On the individual level, justice is viewed as compensatory and commutative.

Compensatory justice (also known as corrective justice)

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means simply that a person who wrongfully inflicts harm on another person or that person’s property must repay or repair the damage; that is, the one causing harm must try to place the injured party in as good a position as that person would have enjoyed had the wrong not been inflicted. x x x Commutative justice entails fairness of a private bargain or exchange. Mutual satisfaction with regard to the substance of such an agreement presupposes full information, truthful- ness, mental capacity, absence of coercion, and subjective satisfaction (as opposed to dollar-for-dollar equivalency) of the exchange. x x x”

(The Structure of the Legal Environment, pp. 22-23, supra)

Equity, on the other hand, has broadly been defined as justice according to natural law and right. (Justice Jose C. Vitug, Compendium of Civil Law and Jurisprudence, 1993 Ed., p. 1). It is also described as justice outside legality. (Tupas vs. Court of Appeals, 193 SCRA 597, 602 [1991]). Equity is often invoked in justifying the rule regarding mitigation of liability if the plaintiff was guilty of contributory negligence. B. DEMOCRACY. The Code Commission explained how democracy is being upheld under the New Civil Code: “It may at first sight seem strange that a civil code should concern itself with democracy, which it may be argued, is properly a matter for a political code. But democracy being more than a mere form of government, affecting as it does, the very foundations of human life and happiness, cannot be overlooked by an integral civil code, particularly since the last two world wars which showed all too tragically that democracy as a way of life must be inculcated into the hearts and minds of men and women.” (Report, p. 28).

Such concern for the democratic way of life is the reason why the Code includes provisions that implement the civil liberties guaranteed by the Constitution. Thus, for example, Article 32 provides for independent civil action for damages against “any public officer or employee, or any private individual, who directly and indirectly obstructs, defeats, violates or in any manner impedes or impairs the civil rights and liberties of another person.” (Report, pp. 28-29). C. HUMAN PERSONALITY EXALTED.

The Commission observed that certain provisions were included

GENERAL CONSIDERATIONS

in the New Civil Code, including Article 26 and the provisions on moral damages, in order to remedy the defects in the Old Civil Code in so far as it did not properly exalt human personality. The Commission explained: “The sacredness of human personality is a concomitant of every plan for human amelioration. The touchstone of every system of laws, of the culture and civilization of every country, is how far it dignifies man. If in legislation, inadequate regard is observed for human life and safety; if the laws do not sufficiently forestall human suffering or do not try effectively to curb those factors or influences that wound the noblest sentiments; if the statutes insufficiently protect persons from being unjustly humiliated, in short, if human personality is not properly exalted — then the laws are indeed defective. Sad to say, such is to some degree the present state of legislation in the Philippines. To remedy this grave fault in the laws is one of the principal aims of the Project of Civil Code.” (Report, p. 32). 5.

JUSTIFICATIONS OF TORT LIABILITY

The Supreme Court explained in Cangco vs. Manila Railroad Company (supra) the foundation of extra-contractual obligations, viz.: “Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those mutual duties which civilized society imposes upon its members, or which arise from these relations, other than contractual, of certain members of society to others, generally embraced in the concept of status. The legal rights of each member of society constitute the measure of the corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of society. The breach of these general duties whether due to willful intent or to mere inattention, if productive of injury, gives rise to an obligation to indemnify the injured party. The fundamental distinction between obligations of this character and those which arise from contract, rests upon the fact that in cases of non-contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the parties when entering into the contractual relation.”

There are different theories on why in tort law, the wrongful or negligent act or omission itself creates the vinculum juris. Legal theorists have tried to explain why liability is imposed or created when there is breach of the duties imposed on the members of the

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society. In this Section, we will turn our attention to justifications advanced by legal theorist based on two (2) perspectives, the moral and social perspective. A. MORAL PERSPECTIVE. Justification for imposition of tort liability may be viewed from a moral perspective. Tort liability may be justified because the conduct is considered a moral wrong. For instance, Senator Tolentino explained that Articles 19 and 20 provide adequate legal remedy for moral wrongs. (Tolentino, Civil Code of the Philippines, Commentaries and Jurisprudence, Vol. I, 1990 Ed., p. 70). Commenting on the business of the law of torts, Justice Oliver Wendell Holmes, Jr. observed that: “The business of the law of torts is to fix the dividing lines between those cases in which a man is liable for harm which he has done, and those in which he is not. But it cannot enable him to predict with certainty whether a given act under given circ*mstances will make him liable, because an act will rarely have that effect unless followed by damage for most part, if not always, the consequences of an act are not known but only guessed at as more or less probable. All the rules that the law can lay down beforehand are rules for determining the conduct which will be followed by liability if it is followed by harm, — that is, the conduct which a man pursues at his peril. The only guide for the future to be drawn from a decision against a defendant in an action of tort is that similar acts, under circ*mstances which cannot be distinguished except by the result from those of the defendant, are done at the peril of the actor; that if he escapes liability, it is simply because by good fortune no harm comes of his conduct in the particular event. If, therefore, there is any common ground for all liability in tort, we shall best find it by eliminating the event as it actually turns out, and by considering only the principles on which the peril of his conduct is thrown upon the actor. We are to ask what are the elements, on the defendant’s side, which must all be present before liability is possible, and the presence of which will commonly make him liable if damage follows. The law of torts abounds in moral phraseology. It has much to say of wrongs, of malice, fraud, intent and negligence. Hence, it may naturally be supposed that the risk of a man’s conduct is thrown upon him as a result of some moral shortcoming.” (The Common Law, 77-80 [1881] reproduced in Robert L. Rabin, Perspectives on Tort Law).

GENERAL CONSIDERATIONS

Consistent with the moral perspective is the maxim Ubi jus ibi remedium — there is no wrong without a remedy. Consequently, the focus of tort law from the moral perspective is the wrong committed and the moral shortcoming of the actor. Such moral justification had pervaded tort law even in the nineteenth century. In fact, “for the nineteenth century, liability in tort was always essentially the penalty of fault to be found in individual tortfeasor.” (W. Friedmann, Legal Theory, 5th Ed., [1967] p. 529). Moral turpitude was considered the outstanding though not exclusive principle of tortious liability. (ibid., p. 529). B. SOCIAL AND ECONOMIC PERSPECTIVE. Social responsibility can also be made to justify tort law. In fact, some modern legal writers believe that the social policy of tort is the primary justification of tort liability. (Jarencio, Torts and Damages, 1983 Ed., p. 6). In other words, liability may be provided for certain tortious conduct because of the good that it will do to the society as a whole and its function of encouraging socially responsible behavior. The purpose of tort law of protecting individual interests (reputation, personal freedom, etc.) discussed above is in fact a reflection of the social policy of tort. As explained by one legal writer, “general notions of policy of incorporating tacitly assumed social objectives have shaped the law and have furnished the final standard by which the adjustments of the conflicting interests have been made.” (Harper on Torts, pp. 4-5). He went on further to explain that: “Each interest which receives recognition and protection by the law, receives such protection to the extent of the social significance of the individual interest, as compared with the other conflicting individual interests. In other words, public policy requires that some interests not be invaded too far in the advancement of other interests. These principles of policy have become crystallized in rules and doctrine, as found in the ensuing chapters. The extent and measure of the application of any legal rule is, therefore, determined by the social policy represented thereby.” (Harper, ibid., pp. 5-6).

The social function of tort may also be viewed from an economic perspective. “Economic analysis of tort law focuses on the allocation of the risks of loss due to the destruction of property or injury to persons created by those activities. Tort law may be viewed as a system of rules designed to maximize wealth by allocating risks so as to minimize the costs associated with engaging in daily activities.” (David W. Barnes and Lynn A. Stout, Economic Analysis of Tort Law,

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1992 Ed., p. 27). Under this view, “tort law allocates the costs of accidents to those in the best position to minimize those costs.” (ibid.) “The economic analysis of tort law begins by examining how the law encourages people to allocate resources to accident prevention.” (ibid.; See also Richard A. Posner, A Theory of Negligence, 1 Journal of Legal Studies; Richard A. Posner, Strict Liability: A Comment, 2 Journal of Legal Studies; Guido Calabresi & Jon T. Hirschoff, Toward a Test of Strict Liability in Tort, 81 Yale Law Journal 1055; Robert L. Rabin, Perspectives on Tort Law, 1976 Ed., pp. 16-32 and 139-210). Thus, the observation of the Supreme Court that the law on quasi-delict seeks to reduce the risks and burdens of living in society and to allocate them among the members of society (Phoenix Construction, Inc. vs. Intermediate Appellate Court, 148 SCRA 353, 370 [1987]), may be interpreted to be consistent with the social policy perspective, particularly its economic perspective. It may be viewed as a means of allocating resources to prevent accidents. It should also be noted that the social policy of tort law and its economic perspective may also justify cases where the law provides for strict liability — liability without fault or negligence. (See Chapter 12). For instance, manufacturers are liable for damages resulting from the consumption of defective products regardless of fault or negligence because they are in the best position to minimize the costs. (See Article 2187, Civil Code and Article 97 of the Consumer Act). It is not grounded on the moral responsibility of the manufacturer as it is not considered in imposing liability. It is partly based on the view that strict liability for defective products is the best way to allocate risks to minimize costs. 6. PERSONS WHO CAN SUE AND BE SUED FOR TORT A.

PLAINTIFFS: PERSONS WHO ARE ENTITLED TO DAMAGES.

As already pointed out earlier, any person who had been injured by reason of a tortious conduct can sue the tortfeasor. Such plaintiff can be a natural person or an artificial person like a corporation. For example, if a taxi driver was physically injured when his vehicle was bumped by another vehicle, both the driver and the corporation that owns the taxi unit can sue the negligent driver of the other. A defendant may be held liable even if he does not know the identity of the plaintiff at the time of the accident. (Gilchrist vs. Cuddy, 29 Phil. 542 [1915]). In fact, the defendant may not be even aware at the time of the accident that he injured the plaintiff because the injury may manifest itself later as in the case where the sickness showed

GENERAL CONSIDERATIONS

its symptoms only days after the accident. An unborn child, however, is not entitled to damages. Although the bereaved parents may be entitled to damages, all such damages must be those inflicted directly upon them as distinguished from the injury or violation of the rights of the unborn child, his right to life and physical integrity. (Geluz vs. Court of Appeals, 2 SCRA 802 [1961]). Birth determines personality and for civil purposes, the foetus is only considered born if it is alive at the time it is completely delivered from the mother’s womb. (Articles 40 and 41, Civil Code). For example, if the mother went to an abortionist without the consent of her husband, the action of the husband against the abortionist for damages pertaining to the unborn child will not prosper. The personality of the child never existed because the child was already dead when it was separated from the mother’s womb. The damages to which the husband may be entitled shall be limited to those which he personally suffered and which he can prove during the trial. B.

DEFENDANTS: PERSONS WHO MAY BE HELD LIABLE.

Defendants in tort cases can either be natural or artificial beings. Thus, the Supreme Court explained that a corporation is civilly liable in the same manner as natural persons. (Philippine National Bank vs. Court of Appeals, 83 SCRA 237 [1978], citing Fletcher’s Cyclopedia of Corporations). The employee or officer concerned is not free from liability but the corporation may be held directly and primarily liable under the concept of vicarious liability. With respect to close corporations, the stockholders who are personally involved in the operation of the corporation may be personally liable for corporate torts under Section 100 of the Corporation Code. The Corporation Code also specifies the rules on tort liability if what is involved is a corporation by estoppel. A corporation by estoppel is not a real corporation but the members make it appear or represent themselves to be members of a corporation in dealing with third persons. Under Section 21 of the Corporation Code, all persons who assume to act as a corporation knowing it to be without authority to do so shall be liable as general partners for all debts, liabilities and damages incurred or arising as a result thereof. The said provision likewise provides that “when any such ostensible corporation is sued on any transaction entered by it as a corporation or on any tort committed by it as such, it shall not be allowed to use as a defense its lack of corporate personality.’’

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With respect to partnerships, Articles 1823 and 1824 of the New Civil Code provide that the partnership is solidarily liable with the partner if the latter commit tortious acts while acting in the pursuit of partnership business. This principle is consistent with the mutual agency rule in partnership. Subject to rules regarding waiver of immunity from suits, defendants may include the State, its political subdivisions, and government-owned and -controlled corporations. (National Irrigation Administration vs. Intermediate Appellate Court, 214 SCRA 35 [1992]). There are even statutory provisions which expressly provide for such liability of the State and provinces, cities and municipalities under certain circ*mstances. (Arts. 2180 and 2189, Civil Code). 7. REMEDIES Legal remedies are either preventive or compensatory. Every remedy in a certain sense is preventive because it threatens certain undesirable consequences to those who violate the rights of others (Thomas M. Cooley and D. Avery Haggard, Cooley on Torts, Vol. 1, 4th Ed., 1932, p. 26). The primary purpose of a tort action is to provide compensation to a person who was injured by the tortious conduct of the defendant. The remedy of the injured person is therefore primarily an action for damages against the defendant. Preventive remedy is available in some cases. A prayer for injunction and a writ of preliminary injuction and a temporary restraining order may be justified under certain circ*mstances. Thus, in proper cases, the defendant may be enjoined from continuing with the performance of a tortious conduct. For example, a person may ask for a restraining order and/or writ of injunction to prevent a wrongful interference with contracts by strangers to such contracts where the legal remedy is insufficient and the resulting injury is irreparable. (Philip S. Yu vs. The Honorable Court of Appeals, 217 SCRA 328 [1993]; Gilchrist vs. Cuddy, 29 Phil. 542 [1915]). Nuisance may also be stopped by the issuance of an injunction. (Iloilo Cold Stores Co. vs. Municipal Council, 24 Phil. 471 [1913]; De Ayala vs. Barretto, 33 Phil. 538 [1916]; San Rafael Homeowners Association, Inc. vs. City of Manila, 46 SCRA 40 [1972]). For instance, if a building that is about to be constructed will unnecessarily pollute the environment, the persons affected may go to court and ask for injunctive relief. The issuance of a writ of preliminary injunction may be justified under

GENERAL CONSIDERATIONS

Rule 58 of the 1997 Rules of Civil Procedure. 8.

ALTERNATIVE COMPENSATION SCHEMES

The purpose of tort law to compensate injured parties is often hampered by the difficulties encountered by aggrieved parties in tort cases. This is especially true in case of injuries that are not grave and the prosecution of cases would be costly. To help victims secure compensation, the legislature usually provides for alternative means of recovering compensation for losses suffered by the parties. These alternative systems of compensation include laws imposing compulsory insurance as well as employees compensation. However, the alternative systems usually suffer from some weaknesses foremost of which is the fact that the amount to be recovered is limited. In most cases, the law fixes a maximum amount that can be recovered by the injured party. Consequently, even in cases covered by the alternative systems, tort actions are still resorted to. In tort cases, the plaintiff can recover damages that are proximately caused by the negligent or willful act of the defendant.

A. INSURANCE.

An example of an alternative compensation scheme is that what is provided for under the Insurance Code. (Presidential Decree No. 1460 as amended). Chapter V of the Insurance Code of the Philippines provides for compulsory motor vehicle insurance. Article 378 provides that “any claim not exceeding five thousand pesos (P5,000.00) for death or injury to any passenger or third party shall be paid without the necessity of proving fault or negligence of any kind.’’ Apparently, the “no-fault” provision of Article 378 of the Insurance Code makes sure that there will be indemnity to persons suffering loss in motor vehicle accidents. The injured party would not be burdened by the inconvenience of litigation because he can recover without proving fault or negligence.

B.

WORKER’S COMPENSATION.

Article 166 of the Labor Code provides that the State shall promote and develop a tax-exempt employee’s compensation program whereby employees and their dependents may promptly secure adequate income benefits and medical or related benefits in the event of work connected disability or injury. The present controlling statutory provisions on employees’ compensation are Articles 167 to 208 of the

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Labor Code. In Common law, employees can claim compensation from their employers if the latter committed tortious actions against them. Liability may be due to the negligence of the employer in the maintenance of the workplace. In such cases, the employee will be saddled with the burden of proving negligence on the part of the employer. The employer will then be able to invoke defenses which will make the employee bear the loss. In most cases, the employee will not have the money to be involved in expensive litigation. The history of employees compensation laws and the reasons for their enactment were discussed in the dissenting opinion of Justice Hugo Gutierrez in Floresca vs. Philex Mining Corporation (136 SCRA 141 [1985]). The Supreme Court Justice explained that workmen’s compensation statutes were enacted to address not only the tendency of employers to employ his wealth to frustrate fault based actions but also the defenses available to the employer. The problems associated with the application of the fellow servant rule, the assumption of risk doctrine, the principle of contributory negligence, and the many other defenses so easily raised in protracted damage suits illustrated the need for a system whereby workers had only to prove the fact of covered employment and the fact of injury arising from employment in order to be compensated. Another objective of the workmen’s compensation statutes was to have simplified, expeditious, inexpensive, and nonlitigious procedures so that victims of industrial accidents could more readily, if not automatically, receive compensation for work-related injuries. (See Notes in p. 923 )

CHAPTER 2

NEGLIGENCE 1.

KINDS OF NEGLIGENCE

Actionable negligence may either be culpa contractual, culpa aquiliana and criminal negligence. Thus, an action for damages for the negligent acts of the defendant may be based on contract, quasidelict or delict. The bases of liability are separate and distinct from each other even if only one act or omission is involved. Previously, there were conflicting opinions regarding the separate nature of the basis of liability for negligence. Manresa’s view was the same as the present prevailing rule. He believed that there is a difference between culpa, substantive and independent, which of itself constitutes the source of an obligation between persons not formerly connected by any legal tie and culpa considered as an incident in the performance of an obligation already existing. (Vol. 8, pp. 30 and 67, cited in Cangco vs. Manila Railroad, 38 Phil 768 [1918]; Manila Railroad Co. vs. Compania Transatlantica, 38 Phil. 875 [1918]). One is called culpa contractual and the other culpa aquiliana. The same principle and terminologies were accepted by Sanchez Roman and supported by decisions of the Supreme Court of Spain (Manila Railroad Co. vs. Compania Tranatlantica, ibid., citing Sanchez Roman, Derecho Civil, fourth section, Chapter XI, Article II, No. 12; 80 Jurisprudencia Civil, Nos. 151 and 75 Jurisprudencia Civil, No. 182). A.

STATUTORY BASIS AND REQUISITES.

a. Quasi-delict. Quasi-delict was used by the Code Commission to designate negligence as a separate source of obligation because it “more nearly corresponds to the Roman Law classification of obligations and is in harmony with the nature of this kind of liability.” (Report of the Code Commission, p. 161; see also Manila Railroad Co. vs. Compania Transatlantica, 38 Phil. 875). It was called culpa-aquiliana in Spanish 23

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law because it can be traced from the Roman law source of obligation called Lex Aquilia. Quasi-delict is governed mainly by Article 2176 of the Civil Code, which states that: “Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this Chapter.’’

Under the above-quoted provision, the essential requisites for a quasi-delictual action are: (1) an act or omission constituting fault or negligence; (2) damage caused by the said act or omission; (3) the causal relation between the damage and the act or omission. (Taylor vs. Manila Electric Company, 16 Phil. 8; Algarra vs. Sandejas, 27 Phil. 284; Tayag, Sr. vs. Alcantara, 98 SCRA 723; Vergara vs. Court of Appeals, 154 SCRA 564; Andamo vs. Intermediate Appellate Court, 191 SCRA 195; Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA 695 [1997]). It should be noted, however, that the Supreme Court added a fourth requisite in some cases, that is, the absence of contractual relation between the plaintiff and the defendant. Although such requirement appears to be consistent with the language of Article 2176 of the Civil Code, it is no longer being cited because it is now well-settled that an action based on quasi-delict can be maintained even if there is an existing contractual relation between the parties.

b. Delict.

Criminal negligence, on the other hand, is governed by Article 365 of the Revised Penal Code, which provides that: “Art. 365. Imprudence and negligence. — Any person who, by reckless imprudence, shall commit any act which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its maximum period to prision correccional in its maximum period; if it would have constituted a less grave felony, the penalty of arresto mayor in its minimum and medium periods shall be imposed. Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

NEGLIGENCE

xxx Reckless imprudence consists in voluntary, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circ*mstances regarding persons, time and place. Simple imprudence consists in the lack of precaution displayed in those cases in which the damage impending to be caused is not immediate nor the danger clearly manifest. x x x”

The elements of the crime defined under Article 365 of the Revised Penal Code are as follows: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circ*mstances regarding persons, time and place. (Cruz vs. Court of Appeals, 282 SCRA 188).

c. Contract.

Culpa contractual is governed by the Civil Code provisions on Obligations and Contracts particularly Articles 1170 to 1174. Article 1170 provides that those, who in the performance of the obligation are guilty of fraud, negligence, or delay, are liable for damages. Responsibility arising from negligence in the performance of every kind of obligation is demandable, but such liability may be regulated by courts, according to the circ*mstances. (Article 1172, Civil Code). By express provision of Article 2178, Articles 1172 to 1174 are applicable to quasi-delict cases.

B. DISTINCTIONS. a.

Culpa Aquiliana distinguished from Culpa Contractual.

In culpa contractual, the foundation of the liability of the defendant is the contract. The obligation to answer for the damage that the plaintiff has suffered arises from breach of the contract by reason of defendant’s failure to exercise due care in its performance. Culpa aquiliana is a separate source of obligation independent of contract.

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For instance, when breach of contract was committed through the negligence of an employee, the employer cannot erase his primary and direct liability by setting up the defense of the diligence of a good father of a family in the selection and supervision of the employee. That is to say the employer’s liability is direct and immediate, differing essentially from his presumptive responsibility for the negligence of his servants based on quasi-delict under Article 2180 of the Civil Code, which can be rebutted by proof of the exercise of due care in their selection and supervision. (Rakes vs. Atlantic Gulf and Pacific Co., 7 Phil. 359). b.

Culpa aquiliana distinguished from crimes.

Crimes under the Penal Code differ from culpa aquiliana or quasi-delitos under the Civil Code, viz.: a) Crimes affect the public interest, while cuasi-delitos are only of private concern; b) The Penal Code punishes or corrects criminal act, while the Civil Code, by means of indemnification, merely repairs the damage; c) Delicts are not as broad as quasi-delicts, because the former are punished only if there is a penal law clearly covering them, while the latter, cuasi-delitos, include all acts in which any kind of fault or negligence intervenes; and d) The liability of the employer of the actor-employee is subsidiary in crimes while his liability is direct and primary in quasi-delict. (Barredo and Garcia vs. Almario, 73 Phil. 607, 611 [1942]; Diana and Diana vs. Batangas Transportation Co, 93 Phil. 391 [1953]; Carpio vs. Daroja, 180 SCRA 1).

C.

CONCURRENCE OF CAUSES OF ACTION.

It should be noted, however, that a single act or omission may give rise to two or more causes of action. The obligation based on one is separate and distinct from the other. That is, an act or omission may give rise to an action based on delict, quasi-delict and even contract. (Far East Bank and Trust Co. vs. Court of Appeals, 240 SCRA 348.) Whenever a contractual obligation can be breached by tort, it is also possible that two persons are liable for such breach even if there is only one act or omission that causes the injury. The same act or omission may result in both culpa contractual and culpa aquiliana, in which event, Article 2194 of the Civil Code can well apply when two persons are involved. Thus, the same negligence of a guard who is employed by an independent contractor to man a common carrier may result in the solidary liability of the carrier as well as the independent contractor. The liability of the carrier is based on contract and

NEGLIGENCE

liability of the contractor is based on quasi-delict. In fine, a liability for tort may arise even under a contract, where tort is that which breaches the contract. When an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to have been breached by tort, thereby allowing the rules on tort to apply (Light Rail Transit Authority et al. v. Marjorie Navidad, et al., G.R. No. 145804, February 6, 2003). There may also be concurrence of causes of action even if only one person is sought to be held liable. Thus, a common carrier’s liability may arise ex contractu and at the same time quasi ex-delicto even if there is only a single act or omission. The Supreme Court explained in Air France vs. Carrascoso (L-21438, September 28, 1966): “A contract to transport passengers is quite different in kind and degree from any other contractual relation. And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carrier’s employees, naturally, could give ground for an action for damages. Passengers do not contract merely for transportation. They have a right to be treated by the carrier’s employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rude or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. Thus, “Where a steamship company had accepted a passenger’s check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected. And this, because, although the relation of passenger and carrier is ‘contractual both in origin and nature’ nevertheless ‘the act that breaks the contract may be also a tort.’” And in another case, “Where a passenger on a railroad train, when the conductor came to collect his fare, tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic,” and the Supreme Court of South Carolina there held

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the carrier is liable for the mental suffering of said passenger. Petitioner’s contract with Carrascoso is one attended with public duty. The stress of Carrascoso’s action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner-air carrier — a case of quasi-delict. Damages are proper.”

The limitation imposed by law is the proscription against double recovery provided for under Article 2177 of the Civil Code. Although an act or omission may give rise to two causes of action, the plaintiff cannot recover twice for the same act or omission of the defendant (Article 2177, Civil Code; Equitable Leasing Corporation v. Lucita Suyom, et al., G.R. No. 143360, September 5, 2002). 2.

CONCEPT OF NEGLIGENCE

The discussion hereunder covers the substantive aspects of negligence based on quasi-delict. However, the definition of negligence and the test thereof as well as the standard of conduct discussed below apply to obligations arising from contract. This is evident from Article 2178 of the New Civil Code which provides that provisions applicable to culpa contractual (Articles 1172 to 1173 of the Civil Code) are likewise applicable to quasi-delict. The same test and definition apply to criminal negligence. Although the Revised Penal Code distinguishes between simple imprudence and reckless imprudence, they are conceptually compatible with negligence arising from quasi-delict. The Supreme Court adopted the view of Wharton in United States vs. Garces (31 Phil. 637, 639 [1915]): “Ker’s Wharton on Criminal Law (11th ed.), section 163, note 4 reads in part as follows: ‘To impose criminal responsibility, Sir J.F. Stephen (2 History Crim. Law, 11) maintains that there must be more, but no one can say how much more, carelessness than is required in order to create a civil liability. For instance, many railway accidents are caused by a momentary forgetfulness or want of presence of mind, which are sufficient to involve the railway in civil liability, but are not sufficient to make the railway servant guilty of manslaughter if death is caused.’ But the better view is that the only difference between criminal and civil procedure in such case is that in the first there can be no conviction if there be reasonable doubt of guilt, while in the second the verdict goes with preponderance of proof.”

Hence, the cases cited hereunder include criminal cases and cases arising from culpa contractual which apply with equal force to

NEGLIGENCE

quasi-delictual actions.

A.

DEFINITION AND TEST OF NEGLIGENCE.

Article 1173 defines negligence as the omission of that degree of diligence which is required by the nature of the obligation and corresponding to the circ*mstances of persons, time and place.

Jurisprudential definitions of negligence include the following: “Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (Black’s Law Dictionary, Fifth Edition, 930) or as Judge Cooley defines it, ‘(T)he failure to observe for the protection of the interests of another person, that degree of care, precaution, and vigilance which the circ*mstances justly demand, whereby such other person suffers injury.’ (Cooley on Torts, Fourth Edition, vol. 3, 265)” (Layugan vs. Intermediate Appellate Court (167 SCRA 363 [1988]). “Negligence was defined by us in two 1912 decisions, United States v. Juanillo and United States v. Barias. Cooley’s formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: Judge Cooley, in his work on Torts (3rd ed.), Sec. 1324, defines negligence to be: ‘The failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circ*mstances justly demand, whereby such other person suffers injury.’ There was likewise reliance on Ahern v. Oregon Telephone Co. Thus: ‘Negligence is want of care required by the circ*mstances. It is a relative or comparative, not absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circ*mstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circ*mstances.’” (Corliss vs. Manila Railroad Company, 27 SCRA 674 [1969]). “Negligence, as it is commonly understood is conduct which creates undue risk of harm to others.” (Valenzuela vs. Court of Appeals, 253 SCRA 303 [1996], citing Keeton and Dobbs, et al., Prosser and Keeton on Torts, 1984 Ed., p. 451).

An oft repeated discussion on negligence is embodied in the decision in Picart vs. Smith (37 Phil. 809, 813 [1918], cited in Gan vs. Court of Appeals, 165 SCRA 378 [1988]; Layugan vs. Intermediate Appellate Court, 167 SCRA 363 [1988]; Leano vs. Domingo, July 4, 1991; McKee vs. Intermediate Appellate Court, 211 SCRA 517 [1992];

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Bank of Philippine Islands vs. Court of Appeals, 216 SCRA 51 [1992]; Mandarin Villa, Inc. vs. Court of Appeals, 257 SCRA 538, 543 [1996]) penned by Justice Street: “The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculation cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by the circ*mstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence, they can be expected to take care only when there is something before them to suggest or warn danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable to warrant his foregoing the conduct or guarding against its consequences.”

B.

NEGLIGENCE IS CONDUCT.

The above-quoted discussion of the Supreme Court makes it clear that negligence is conduct. A court that determines the question of existence of negligence is concerned with what the defendant did or did not do. What is important in the determination of the presence or absence of negligence is whether the person who is sought to be held liable omitted to do something which a reasonable man would do or did something which a reasonable man would not do. The state of mind of the actor is not important; good faith or use of sound judg-

NEGLIGENCE

ment is immaterial. Hence, the existence of negligence in a given case is not determined by reference to the personal judgment but by the behavior of the actor in the situation before him. (Picart vs. Smith, ibid.). Even if the actor believed that he exercised proper diligence, he will still be liable if his conduct did not correspond to what a reasonable man would have done under the same circ*mstances. For the same reason, motive is not material in negligence cases. For example, the defendant may still be held liable for damages even if the act was meant to be a practical joke. (57 Am. Jur. 354). It should likewise be emphasized that only juridical fault is subject to liability and not moral fault. “Acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy.” (Donoghue vs. Stevenson, A.C. 562 at 580, [1932]). For instance, a person who does not give assistance to a person who is in danger of death is guilty only of moral negligence, but not of juridical negligence. In such case, the person who lacked the virtue of charity is not liable for damages. (Tolentino, Commentaries and Jurisprudence on the Civil Code of the Philippines, 1992 Ed., p. 594). Nevertheless, the conduct that should be examined in negligence cases is prior conduct, that is, conduct prior to the injury that resulted or, in proper cases, the aggravation thereof. The law imposes a duty on the doer to take precaution against its mischievous results, hence, what is important is that what was called in a dissenting opinion in one case as “diligence before the fact.” (St. Francis High School vs. Court of Appeals, 194 SCRA 341, 356-357 [1991]). This diligence may include the duty to investigate. Where the situation suggest investigation and inspection in order that its danger may fully appear, the duty to make such investigation and inspection is imposed. (Dichitang, et al. vs. Vicente V. Aguilar & Co., et al., 8 CAR 2s 618, 622 [1965]). Moreover, such diligence before the fact does not necessarily mean that conduct which is the safest way of doing things. The fact that there may have been a safer method than that employed or danger may have been avoided by action in a different manner, does not make an act negligent. (67 C.J.S. 472).

C.

UNREASONABLE OR UNDUE RISKS.

Negligence, as it is commonly understood is a conduct that creates an undue risk of harm to others. (Valenzuela vs. Court of

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Appeals, 253 SCRA 303 [1996]). For example, if a driver of a vehicle recklessly drove his vehicle thereby causing damage to another’s vehicle, the reckless driving created an undue risk that resulted in such damage. Of course, driving without recklessness also involves risks. The moment a driver gets out of his garage, there exists a risk that somebody might be injured. Indeed, all actions entail a degree of risk and all conduct under certain circ*mstances may be a source of damage. However, in negligence, risk means a danger which is apparent, or should be apparent, to one in the position of the actor. (Prosser and Keeton, pp. 169-170). Such type of risk is unreasonable risk. If such unreasonable risk results in injury to the plaintiff, the latter can recover from the defendant. (Phoenix Construction vs. IAC, 148 SCRA 353 [1987]).

D.

FORSEEABILITY.

Since the unreasonableness of the risk means danger that is apparent or should be apparent, the determination of negligence is a question of foresight on the part of the actor. The test to determine the existence of negligence is to ask if the defendant used reasonable care and caution which an ordinarily prudent person would have used. However, to determine what a reasonable man would have done requires the application of the test of foreseeability. As stated in Picart vs. Smith (supra), the question is “Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued?” In determining whether or not the actor was negligent, the court will place itself in the position of the actor and see if a prudent man could have foreseen the harm that would result if the conduct is pursued. However, the courts should look more on the possibility of hazard of some form than the particular chance that happened. (Pease vs. Sinclair Ref. Co., 123 ALR 933, 104 F2d 183). In other words, even if the particular injury was not foreseeable, the risk is still foreseeable if possibility of injury is foreseeable. Thus, in a case where the vehicle being driven by the defendant bumped another vehicle parked in the highway, the Supreme Court ruled that the defendant was negligent because at the time of the incident, he was driving in a highway at the rate of 70 kilometers per hour although he could hardly see an object at the distance of ten (10) meters because of heavy rain. A reasonable man would have foreseen that a stalled vehicle is parked in the highway. (Cabardo vs. The Court of Appeals, G.R. No. 118202, May 19, 1998).

NEGLIGENCE

CASES: ONG vs. METROPOLITAN WATER DISTRICT 104 Phil. 398 [1958] BAUTISTA ANGELO, J.: Plaintiffs spouses seek to recover from defendant, a government-owned corporation, the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as attorneys’ fees, for the death of their son Dominador Ong in one of the swimming pools operated by defendant. Defendant admits the fact that plaintiffs’ son was drowned in one of its swimming pools but avers that his death was caused by his own negligence or by unavoidable accident. Defendant also avers that it had exercised due diligence in the selection of, and supervision over, its employees and that it had observed the diligence required by law under the circ*mstances. After trial, the lower court found that the action of plaintiffs is untenable and dismissed the complaint without pronouncement as to costs. Plaintiffs took the case on appeal directly to this Court because the amount involved exceeds the sum of P50,000. Defendant owns and operates three recreational swimming pools at its Balara filters, Diliman, Quezon City, to which people are invited and for which a nominal fee of P0.50 for adults and P0.20 for children is charged. The main pool is between two small pools of oval shape known as the “Wading pool” and the “Beginners Pool.” There are diving boards in the big pools and the depths of the water at different parts are indicated by appropriate marks on the wall. The care and supervision of the pools and the users thereof is entrusted to a recreational section composed of Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila. For the safety of its patrons, defendant has provided the pools with a ring buoy, toy roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who is in charge of a clinic established for the benefit of the patrons. Defendant has also on display in a conspicuous place certain rules and regulations governing the use of the pools, one of which prohibits the swimming in the pool alone or without any attendant. Although defendant does not maintain a full-time physician in the swimming pool compound, it has however a nurse and a sanitary inspector ready to administer injections or operate the oxygen resuscitator if the need should arise. In the afternoon of July 5, 1952, at about 1:00 o’clock, Dominador Ong, a 14-year old high school student and a boy scout, and his brothers Ruben and Eusebio, went to defendant’s swimming pools. This was not the first time that the three brothers had gone to said natatorium for they had already been there four or five times before. They arrived at the natatorium at about

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1:45 p.m. After paying the requisite admission fee, they immediately went to one of the small pools where the water was shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to the locker room in an adjoining building to drink a bottle of co*ke. Upon hearing this, Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and so they did not see the latter when he left the pool to get a bottle of co*ke. In that afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to 11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon, there were about twenty bathers inside the pool area and Manuel Abaño was going around the pools to observe the bathers in compliance with the instructions of his chief. Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather by the name of Andres Hagad, Jr., that somebody was swimming under water for quite a long time. Another boy informed lifeguard Manuel Abaño of the same happening and Abaño immediately jumped into the big swimming pool and retrieved the apparently lifeless body of Dominador Ong from the bottom. The body was placed at the edge of the pool and Abaño immediately applied manual artificial respiration. Soon after, male nurse Armando Rule came to render assistance, followed by sanitary inspector Iluminado Vicente who, after being called by phone from the clinic by one of the security guards, boarded a jeep carrying with him the resuscitator and a medicine kit, and upon arriving he injected the boy with camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr. Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the artificial manual respiration, and when this failed to revive him, they applied the resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr. Ayuyao arrived with another resuscitator, but the same became of no use because he found the boy already dead. The doctor ordered that the body be taken to the clinic. In the evening of the same day, July 5, 1952, the incident was investigated by the Police Department of Quezon City and in the investigation the boys Ruben Ong and Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal Division, National Bureau of Investigation, who found in the body of the deceased the following: an abrasion on the right elbow lateral aspect; contusion on the right forehead; hematoma on the scalp, frontal region, right side; a congestion in the brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood in the heart; congestion in the visceral organs, and brownish fluid in the stomach. The death was due to asphyxia by submersion in water. The issue posed in this appeal is whether the death of minor Dominador Ong can be attributed to the negligence of defendant and/or its employees so as to entitle plaintiffs to recover damages.

NEGLIGENCE

The present action is governed by Article 2176 in relation to Article 2080 of the new Civil Code. The first article provides that “whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damages done.” Such fault or negligence is called quasi-delict. Under the second article, this obligation is demandable not only for one’s own acts or omissions but also for those of persons for whom one is responsible. In addition, we may quote the following authorities cited in the decision of the trial court: “The rule is well settled that the owners of resorts to which people generally are expressly or by implication invited are legally bound to exercise ordinary care and prudence in the management and maintenance of such resorts, to the end of making them reasonably safe for visitors.’’ (Larkin vs. Saltair Beach Co., 30 Utah 86, 83 Pac. 688). “Although the proprietor of a natatorium is liable for injuries to a patron, resulting from lack of ordinary care in providing for his safety, without the fault of the patron, he is not, however, in any sense deemed to be the insurer of the safety of patrons. And the death of a patron within his premises does not cast upon him the burden of excusing himself from any presumption of negligence (Bertalot vs. Kinnare, 72 Ill. App. 52, 22 A. L. R. 635; Flora vs. Bimini Water Co., 161 Cal. 495, 119 Pac. 661). Thus in Bertalot vs. Kinnare, supra, it was held that there could be no recovery for the death by drowning of a fifteen-year boy in defendant’s natatorium, where it appeared merely that he was lastly seen alive in water at the shallow end of the pool, and some ten or fifteen minutes later was discovered unconscious, and perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being without avail.” Since the present action is one for damages founded on culpable negligence, the principle to be observed is that the person claiming damages has the burden of proving that the damage is caused by the fault or negligence of the person from whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil. 517). The question then that arises is: Have appellants established by sufficient evidence the existence of fault or negligence on the part of appellee so as to render it liable for damages for the death of Dominador Ong? There is no question that appellants had striven to prove that appellee failed to take the necessary precaution to protect the lives of its patrons by not placing at the swimming pools efficient and competent employees who may render help at a moment’s notice, and they ascribed such negligence to appellee because the lifeguard it had on the occasion minor Ong was drowning was not available or was attending to something else with the result that his help came late. Thus, appellants tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard Manuel Abaño did not immediately respond to the alarm and it was only upon the third call that he threw away the magazine he was reading and allowed three or four minutes

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to elapse before retrieving the body from the water. This negligence of Abaño, they contend, is attributable to appellee. But the claim of these two witnesses not only was vehemently denied by lifeguard Abaño, but is belied by the written statements given by them in the investigation conducted by the Police Department of Quezon City approximately three hours after the happening of the accident. Thus, these two boys admitted in the investigation that they narrated in their statements everything they knew of the accident, but, as found by the trial nowhere in said statements do they state that the lifeguard was chatting with the security guard at the gate of the swimming pool or was reading a comic magazine when the alarm was given for which reason he failed to immediately respond to the alarm. On the contrary, what Ruben Ong particularly emphasized therein was that after the lifeguard heard the shouts for help, the latter immediately dived into the pool to retrieve the person under water who turned out to be his brother. For this reason, the trial court made this conclusion: “The testimony of Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to immediately respond to their call may therefore be disregarded because they are belied by their written statements.” On the other hand, there is sufficient evidence to show that appellee has taken all necessary precautions to avoid danger to the lives of its patrons or prevent accident which may cause their death. Thus, it has been shown that the swimming pools of appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator and a first aid medicine kit. The bottom of the pools is painted with black colors so as to insure clear visibility. There is on display in a conspicuous place within the area certain rules and regulations governing the use of the pools. Appellee employs six lifeguards who are all trained as they had taken a course for that purpose and were issued certificates of proficiency. These lifeguards work on schedule prepared by their chief and arranged in such a way as to have two guards at a time on duty to look after the safety of the bathers. There is a male nurse and a sanitary inspector with a clinic provided with oxygen resuscitator. And there are security guards who are available always in case of emergency. The record also shows that when the body of minor Ong was retrieved from the bottom of the pool, the employees of appellee did everything possible to bring him back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño immediately gave him manual artificial respiration. Soon thereafter, nurse Armando Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him an oxygen resuscitator. When they found that the pulse of the boy was abnormal, the inspector immediately injected him with camphorated oil. When the manual artificial respiration proved ineffective they applied the oxygen resuscitator until its contents were exhausted. And while all these efforts were being made, they sent for Dr. Ayuyao from the University of the Philippines who however came late because upon examining the body found him to be already dead. All of the foregoing shows that appellee has done what is humanly possible under the circ*mstances to restore life to minor Ong and for that reason it is unfair to

NEGLIGENCE

hold it liable for his death. CIVIL AERONAUTICS ADMINISTRATION vs. COURT OF APPEALS and ERNEST E. SIMKE G.R. No. L-51806, November 8, 1988 CORTES, J.:

The facts of the case are as follows:

Private respondent is a naturalized Filipino citizen and at the time of the incident was the Honorary Consul General of Israel in the Philippines. In the afternoon of December 13, 1968, private respondent with several other persons went to the Manila International Airport to meet his future son-in-law. In order to get a better view of the incoming passengers, he and his group proceeded to the viewing deck or terrace of the airport. While walking on the terrace, then filled with other people, private respondent slipped over an elevation about four (4) inches high at the far end of the terrace. As a result, private respondent fell on his back and broke his thigh bone. The next day, December 14, 1963, private respondent was operated on for about three hours. Private respondent then filed an action for damages based on quasidelict with the Court of First Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or CAA as the entity empowered “to administer, operate, manage, control, maintain and develop the Manila International Airport . . .” [Sec. 32(24), R.A. 776]. Said claim for damages included, aside from the medical and hospital bills, consequential damages for the expenses of two lawyers who had to go abroad in private respondent’s stead to finalize certain business transactions and for the publication of notices announcing the postponement of private respondent’s daughter’s wedding which had to be cancelled because of his accident [Record on Appeal, p. 5]. Judgment was rendered in private respondent’s favor prompting petitioner to appeal to the Court of Appeals. The latter affirmed the trial court’s decision. Petitioner then filed with the same court a Motion for Reconsideration but this was denied. Petitioner now comes before this Court raising the following assignment of errors: xxx 2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest E. Simke were due to petitioner’s negligence — although there was no substantial evidence to support such finding; and that the

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inference that the hump or elevation in the surface of the floor area of the terrace of the (old) MIA building is dangerous just because said respondent tripped over it is manifestly mistaken — circ*mstances that justify a review by this Honorable Court of the said finding of fact of respondent appellate court. (Garcia vs. Court of Appeals, 33 SCRA 622; Ramos vs. CA, 63 SCRA 331). xxx II Petitioner tries to escape liability on the ground that there was no basis for a finding of negligence. There can be no negligence on its part, it alleged, because the elevation in question “had a legitimate purpose for being on the terrace and was never intended to trip down people and injure them. It was there for no other purpose but to drain water on the floor area of the terrace.” [Rollo, p. 99]. To determine whether or not the construction of the elevation was done in a negligent manner, the trial court conducted an ocular inspection of the premises.

x x x

x x x

xxx

. . . This Court after its ocular inspection found the elevation shown in Exh. A or 6-A where plaintiff slipped to be a step, a dangerous sliding step, and the proximate cause of plaintiffs injury . . .

x x x

x x x

xxx

This Court during its ocular inspection also observed the dangerous and defective condition of the open terrace which has remained unrepaired through the years. It has observed the lack of maintenance and upkeep of the MIA terrace, typical of many government buildings and offices. Aside from the litter allowed to accumulate in the terrace, pot holes caused by missing tiles remained unrepaired and unattented. The several elevations shown in the exhibits presented were verified by this Court during the ocular inspection it undertook. Among these elevations is the one (Exh. A) where plaintiff slipped. This Court also observed the other hazard, the slanting or sliding step (Exh. B) as one passes the entrance door leading to the terrace [Record on Appeal, U.S., pp. 56 and 59; Italics supplied].

The Court of Appeals further noted that:

The inclination itself is an architectural anomaly for as stated by the said witness, it is neither a ramp because a ramp is an inclined surface in such a way that it will prevent people or pedestrians from sliding. But if, it is a step then it will not serve its purpose, for pedestrian purposes. (tsn, p. 35, id.) [Rollo, p. 29.] These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot disclaim its liability for the negligent construction

NEGLIGENCE

of the elevation since under Republic Act No. 776, it was charged with the duty of planning, designing, constructing, equipping, expanding, improving, repairing or altering aerodromes or such structures, improvements or air navigation facilities [Section 32, supra, R.A. No. 776]. In the discharge of this obligation, the CAA is duty-bound to exercise due diligence in overseeing the construction and maintenance of the viewing deck or terrace of the airport. It must be borne in mind that pursuant to Article 1173 of the Civil Code, “(t)he fault or negligence of the obligor consists in the omission of that diligence which is required by the nature of the obligation and corresponds with the circ*mstances of the person, of the time and of the place.” Here, the obligation of the CAA in maintaining the viewing deck, a facility open to the public, requires that CAA insure the safety of the viewers using it. As these people come to the viewing deck to watch the planes and passengers, their tendency would be to look to where the planes and the incoming passengers are and not to look down on the floor or pavement of the viewing deck. The CAA should have thus made sure that no dangerous obstructions or elevations exist on the floor of the deck to prevent any undue harm to the public. The legal foundation of CAA’s liability for quasi-delict can be found in Article 2176 of the Civil Code which provides that “(w)hoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. . . .” As the CAA knew of the existence of the dangerous elevation which it claims though, was made precisely in accordance with the plans and specifications of the building for proper drainage of the open terrace [See Record on Appeal, pp. 13 and 57; Rollo, p. 39], its failure to have it repaired or altered in order to eliminate the existing hazard constitutes such negligence as to warrant a finding of liability based on quasi-delict upon CAA. The Court finds the contention that private respondent was, at the very least, guilty of contributory negligence, thus reducing the damages that plaintiff may recover, unmeritorious. Contributory negligence under Article 2179 of the Civil Code contemplates a negligent act or omission on the part of the plaintiff, which although not the proximate cause of his injury, contributed to his own damage, the proximate cause of the plaintiff’s own injury being the defendant’s lack of due care. In the instant case, no contributory negligence can be imputed to the private respondent, considering the following test formulated in the early case of Picart vs. Smith, 37 Phil. 809 (1918): The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent man would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of the negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that.

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The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case. Abstract speculations cannot be here of much value but this much can be profitably said: Reasonable men govern their conduct by the circ*mstances which are before them or known to them. They are not, and are not supposed to be omniscient of the future. Hence, they can be expected to take care only when there is something before them to suggest or warn of danger. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by the ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist . . . (Picart v. Smith, supra, p. 813). The private respondent, who was the plaintiff in the case before the lower court, could not have reasonably foreseen the harm that would befall him, considering the attendant factual circ*mstances. Even if the private respondent had been looking where he was going, the step in question could not easily be noticed because of its construction. As the trial court found: In connection with the incident testified to, a sketch, Exhibit O, shows a section of the floorings on which plaintiff had tripped. This sketch reveals two pavements adjoining each other, one being elevated by four and onefourth inches than the other. From the architectural standpoint, the higher pavement is a step. However, unlike a step commonly seen around, the edge of the elevated pavement slanted outward as one walks to the interior of the terrace. The length of the inclination between the edges of the two pavements is three inches. Obviously, plaintiff had stepped on the inclination because had his foot landed on the lower pavement he would not have lost his balance. The same sketch shows that both pavements including the inclined portion are tiled in red cement, and as shown by the photograph. Exhibit A, the lines of the tilings are continuous. It would therefore be difficult for a pedestrian to see the inclination especially where there are plenty of persons in the terrace as was the situation when plaintiff fell down. There was no warning sign to direct one’s attention to the change in the elevation of the floorings. [Rollo, pp. 28-29.]

E. PROBABILITY.

It is clear that foreseeability involves the question of probability. The Supreme Court explained that there is negligence “if a prudent man in the position of the tortfeasor would have foreseen that the effect harmful to another was sufficiently probable to warrant his conduct or guarding against its consequence. (Picart vs. Smith, supra.)” If there is a great probability and risk that damage will result, a person is negligent if he did not exercise due diligence in the face of such great probability.

NEGLIGENCE

Generally, the degree of care required is graduated according to the danger a person or property attendant upon the activity which the actor pursues or the instrumentality he uses. The greater the danger the greater the degree of care required. What is ordinary under extraordinary conditions is dictated by those conditions; extraordinary risk demands extraordinary care. Similarly, the more imminent the danger, the higher the degree of care. (Far Eastern Shipping Company vs. Court of Appeals, 297 SCRA 30, 64-65 [1998]). However, foreseeability is not the same as probability. Even if there is lesser degree of probability that damage will result, the damage may still be considered foreseeable. Indeed, there is no mathematical rule of percentage to be followed here. A risk is not necessarily unreasonable because the harmful consequence is more likely than not to follow the conduct, nor reasonable because the chances are against that. A very large risk may be reasonable in some circ*mstances, and a small risk unreasonable in other circ*mstances. (Terry, Negligence, 29 Harv. L. Rev. 40, 42 [1915]). As explained in one case, “when the inquiry is one of foreseeability, as regards a thing that may happen in the future and to which the law of negligence holds a party to anticipation as a measure of duty, that inquiry is not whether the thing is foreseen or anticipated as one which will probably happen, according to the ordinary acceptation of that term, but whether it is likely to happen, even though the likelihood may not be sufficient to amount to a comparative probability.” (Gulf Refining Co. vs. Williams, 183 Miss. 723, 185 So. 234 [1938]). The test as respects foreseeability is not the balance of probabilities, but the existence, in the situation in hand, of some real likelihood of some damage and the likelihood is of such appreciable weight and moment to induce, or which reasonably should induce, action to avoid it on the part of a person of a reasonably prudent mind. (ibid.; Tullgren vs. Amoskeag Mfg. Co., 82 N.H. 268, 133 A. 4 [1926]). In the last cited Tullgren case, the court ruled that: “x x x Danger consists in the risk of harm, as well as the likelihood of it, and a danger calling for anticipation need not be of more probable occurrence than less. If there is some probability of harm sufficiently serious that ordinary men would take precautions to avoid it, then failure to do so is negligence. That danger will more probably than otherwise not be encountered on a particular occasion does not dispense with the exercise of care. One who crosses a railroad track may not reasonably anticipate that a train will in fact be met but, by reason of the risk that one may be, he is called upon to do what is reasonably required to find out. In going

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around a sharp turn on a highway, where the view is obstructed, a driver may be careless toward opposite travel in speed or other ways, though the probabilities may be against meeting one. If the chance is so great that ordinary men would drive differently, then it is careless not to do so.”

3.

CALCULATION OF RISK

A.

RISK BENEFIT ANALYSIS.

Many legal writers have suggested different ways of determining the unreasonableness of the risk involved in defendant’s conduct. The late Dean William Prosser, the most influential legal writer on Tort in the United States, explained the fundamental precept in said jurisdiction that the standard of conduct, which is the basis of the law of negligence, is usually determined upon a risk-benefit form of analysis: “by balancing the risk, in the light of the social value of the interest threatened, and the probability and extent of harm against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.” (Prosser and Keeton, Law of Torts, 1984 Ed., p. 173, citing Terry, Negligence, supra). Under such analytical framework, the following circ*mstances should therefore be considered: a) gravity of the harm to be avoided; b) utility of conduct or the social value it seeks to advance; and c) alternative course of action, dangers and advantages to the person or property of the actor himself and to others. (ibid., pp. 169-172). Professor Terry, the authority cited by Prosser, explained that reasonableness may depend upon five factors: 1) The magnitude of risk (A risk is more likely to be unreasonable the greater it is); 2) The value or importance of that which is exposed to the risk, which is the object that the law desires to protect, and may be called the principal object; 3) A person who takes a risk of injuring the principal object usually does so because he has some reason of his own for such conduct (referred to as the collateral object); 4) The probability that the collateral object will be attained by the conduct which involves risk to the principal (the utility of the risk); and 5) The probability that the collateral object will be attained without taking the risk (the necessity of the risk). (Terry, Negligence, supra, pp. 42-44). The following illustration was given: “The plaintiff’s intestate, seeing a child on a railroad track in front of a rapidly approaching train, went upon the track to save him. He did save him, but was himself killed by train. The jury were allowed to find that he had not been guilty of

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contributory negligence. The question was of course whether he had exposed himself to an unreasonable great risk. Here the above-mentioned elements of reasonableness were as follows: (1) The magnitude of the risk was the probability that he would be killed or hurt. That was very great. (2) valuable.

The principal object was his own life, which was very

(3) The collateral object was the child’s life, which was also very valuable. (4) The utility of that risk was the probability that he could save the child. That must have been fairly great, since he in fact suceeded. Had there been no fair chance of saving the child, the conduct would have been unreasonable and negligent. (5) The necessity of the risk was the probability that the child would not have saved himself by getting off the track in time. Here, although the magnitude of the risk was very great and principal object very valuable, yet the value of the collateral object and the great utility and necessity of the risk counterbalanced those considerations, and made the risk reasonable. The same risk would have been unreasonable, had the creature on the track been a kitten, because the value of the collateral object would have been small. There is no general rule that human life may not be put at risk in order to save property; but since life is more valuable than property, such a risk has often to the effect that it is always so. But in the circ*mstances of other cases a risk of that sort has been reasonable.”

Judge Learned Hand’s landmark opinion in United States vs. Carroll Towing Co. (159 F. 2d 169 [1947]) reduced the risk benefit rule to a negligence formula: “x x x It appears from the foregoing review that there is no general rule to determine when the absence of a bargee or attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. However, in any cases where he would be so liable for injuries to others, obviously he must reduce his damages proportionately, if the injury is to his own barge. It becomes apparent why there can be such general rule, when we consider the grounds for such a liability. Since there are occasions when every vessel will break from her moorings, and, since, if she does, she becomes a menace to those about her, the owner’s duty, as in other similar situations, to provide against resulting injuries is a function of three

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variables: (1) That the probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury L; and the burden B; liability depends upon whether B is less than L multiplied by P; i.e., whether B is less than PL.”

B.

RULE IN THE PHILIPPINES.

There is an opinion to the effect that the risk-benefit analysis is applicable in this jurisdiction. (See Jarencio, Philippine Law on Torts and Damages, 1983 Ed., p. 107, citing Prosser, Handbook of the Law of Torts, pp. 119-123; Henry T. Terry, Selected Essays on the Law of Torts, 29 Harv. Law Rev., 40-44). It would seem, however, that the risk benefit “formula” has not taken root and developed in Philippine case law. Courts in this jurisdiction do not use any formula in determining if the defendant committed a negligent act or omission. There is no indication in cases decided by the Supreme Court that it seeks to give “a precise economic meaning to the term.” What appears to be the norm is to give negligence what Prof. Richard Epstein calls “a common sense, intuitive interpretation. (Epstein, Cases and Materials on Torts, 6th Ed., p. 189).” In the cases decided by the Supreme Court, the High Court, by intuition, determined if any of the parties was negligent after weighing all the circ*mstances. Thus, in effect, Courts in this jurisdiction believe Prof. Seavy when he said that we cannot rely upon any formula in regard to “balancing interests” to solve negligence cases. In fact, the phrase “balancing of risk” is merely a convenient one to indicate factors which may be considered and should not connote any mathematical correspondence. (Seavy, Negligence, Subjective or Objective, 41 Harv. L. Rev. 1, 8, n. 7 [1927]). In the field of negligence, interests are to be balanced only in the sense that the purposes of the actor, the nature of his act and the harm that may result from action or inaction are elements to be considered. Some may not be considered depending on the circ*mstances. (ibid.). The rule in the Philippines has always been that what constitutes ordinary care vary with the circ*mstances of the case; that negligence is want of care required by the circ*mstances. In Corliss vs. Manila Railroad Company (supra), the Supreme Court explained that one cannot just single out a circ*mstance and then confidently assign to it the decisive weight and significance. The Supreme Court stressed “that the decisive considerations are too variable, too depend-

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ent in the last analysis upon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or that element having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse for us to imprison them in a formula sufficient of itself to yield the correct answer to the multi-faceted problems the question of negligence poses. Every case must be dependent on its facts. The circ*mstances indicative of lack of care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out.” In other words, negligence is a relative or comparative concept. Its application depends upon the situation the parties are in, and the degree of care and vigilance which the prevailing circ*mstances reasonably require. (Bulilan vs. Commission on Audit, 285 SCRA 445, 453 [1998]). Statutory provisions applicable to negligence cases specify circ*mstances that should be considered in determining negligence. Article 1173 of the Civil Code provides that the degree of diligence depends upon the nature of the obligation and corresponds to the circ*mstances of person, time and place. Article 365 of the Revised Penal Code provides that the determination of reckless imprudence should take into consideration the employment or occupation of the actor, his degree of intelligence, physical condition and other circ*mstances regarding persons, time and place. In the subsections below, we will endeavor to explain circ*mstances specified in statutes that may affect the determination of negligence. We shall also discuss other circ*mstances considered by the Supreme Court in determining negligence.

a.

Circ*mstances to consider.

(1) Time.

Obviously, the time of the day may affect the diligence required of the actor. (Article 1173, Civil Code). A driver is required to exercise more prudence if he is driving at night. In fact, running in a dark place requires a different degree of care compared to running in the light of day. In People vs. Ramirez (48 Phil. 204 [1925]), the accused shot his companion while they were hunting at night. He alleged that “he seemed to have seen with his lantern something like the eyes of a deer, about 50 meters from him then he shot it.” He claimed that he did not expect to find one of his companion on the spot for he had warned them not to leave the place where he left them. The Supreme

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Court rejected the argument stating that a person who was carrying a firearm to hunt at nighttime with the aid of a lantern knowing that he had two companions should have exercised all the necessary diligence to avoid every undesirable accident. “The night being dark, the hunter in the midst of the forest without paths is likely to get confused as to his relative situation; and after walking around, he may think having gone very far, when in fact he has not, from the point of departure.” A greater degree of diligence is needed if one is driving in an avenue at 8:00 o’clock in the morning when there are many pedestrians and motorists. However, ordinary care and vigilance would suffice while driving at half past 1:00 o’clock in the morning along an almost deserted avenue which may consists of keeping a watchful eye on the road ahead and observing the traffic rules on speed, right of way and traffic light (Adzuara v. Court of Appeals, 301 SCRA 657 [1999]).

(2) Place.

The place of the incident is also material. A man who should have occasion to discharge a gun on an open and extensive marsh, or in a forest would be required to use less circ*mspection and care, than if he were to do the same thing in an inhabited town, village, or city. (Brown vs. Kendall, 60 Mass. 292 [1850]; see also People vs. Cusi, CA 68 O.G. 2777). Travelling on a slippery road likewise requires a higher degree of diligence than driving in a dry road.

(3) Emergency.

“Who can be wise, temperate and furious, loyal and neutral, in a moment? No man.” (McBeth, Act I, Scene III). McBeth may not have been answering a legal question when he uttered that line, but the line certainly describes the basis of what is known in tort law as the “Emergency Rule.” With respect to the circ*mstance of time, jurisprudence likewise requires courts to consider the presence of an emergency. The Supreme Court explained the rule in one case: “Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions. Under the ‘emergency rule’ adopted by this Court in Gan vs. Court of Appeals, an individual who suddenly finds

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himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence.” (Valenzuela vs. Court of Appeals, 253 SCRA 303, 318 [1996]).

An example of the case where the “emergency rule” was applied is McKee vs. Intermediate Appellate Court (211 SCRA 517 [1992]). One of the plaintiffs therein swerved his vehicle in order to avoid hitting two (2) children. The Supreme Court explained that “any reasonable and ordinary prudent man would have tried to avoid running over two boys by swerving the car away from where they where even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the other side of the road and give way to the oncoming car. Moreover, under the emergency rule ‘one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.’” It cannot be disregarded, however, that while the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoughtful care, but by the over-all nature of the circ*mstances. (Valenzuela vs. Court of Appeals, supra).

(4) Gravity of Harm to be Avoided.

Even if the odds that an injury will result is not high, harm may still be considered foreseeable if the gravity of harm to be avoided is great. Thus, in one case (Consolacion Junio vs. Manila Railroad Company, 58 Phil. 176 [1933]), the respondent operated a gate in an intersection even at night; it closed the gate if a train passed. Under such circ*mstances, although the driver of a motor vehicle can expect that the railway company will perform its self-imposed obligation and the chances of being hit by a train is remote if the gate is open, the driver is likewise negligent if he fails to exercise due care in crossing the railway. Life is much too precious so much so that disregard of

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danger, even if the odds that it will result is not great, is negligence. When human life is at stake, due care under the circ*mstances requires everything that gives reasonable promise of preserving life to be done regardless of the difficulties. (57 Am. Jur. 2d 418). For the same reason, a motorist should always use due diligence in traversing a railroad crossing. The degree of diligence may vary depending on the circ*mstances but in any event he should always check if the crossing is clear. Thus, greater care is necessary in crossing a road where cars are running at a high rate of speed and close together than where they are running at less speed and remote from one another. In some cases the use of sight would be sufficient, but in every case due care should be exercised. It is very possible that where, on approaching a crossing, the view of the tracks in both directions is unobstructed for such a distance as to render it perfectly safe to pass over without the use of any faculty other than sight, such use alone is sufficient and it is not necessary to stop or even to slacken speed, to reduce noice, if any, of the vehicle, to look and to listen, if necessary, or do any other act necessary to determine that a train is not in dangerous proximity to the crossing. (Yamada vs. Manila Railroad Co., 33 Phil. 8 [1915]).

(5) Alternative Course of Action.

In McKee vs. Intermediate Appellate Court (supra, at 55), the gravity of injury which will result if the alternative course of action was taken by the actor was also considered. The said case involves a collision between a car and a truck. The then Intermediate Appellate Court (now Court of Appeals) ruled that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car was negligent. The Supreme Court ruled that there was an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck’s lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car. The Supreme Court explained that the car driver’s entry into the lane of the truck was necessary in order to avoid what was, in his mind, at that time, a greater peril — death or injury to the two (2) boys. If the alternative presented to the actor is too costly, the harm that may result may still be considered unforeseeable to a reasonable man. More so if there is no alternative thereto. Thus, in Manila Electric Co. vs. Remoquillo, et al. (99 Phil. 117, 124-125 [1956]), the Supreme Court acknowledged that the stringing of high voltage wires,

NEGLIGENCE

uninsulated and so close to houses is a constant source of danger, even death, especially to persons who having occasion to be near said wires, do not adopt the necessary precautions. However, the Court did not consider the same negligence citing, among others, the fact that the high voltage wires cannot be properly insulated and at a reasonable cost.

(6) Social Value or Utility of Activity.

The absence of a viable alternative should also be examined in the light of the social value of the activity involved. The diligence which the law requires an individual to observe and exercise varies according to the nature of the situation which he happens to be in, and the importance of the act which he has to perform. (Bulilan vs. Commission of Audit, 285 SCRA 445, 453 [1998]). Thus, in Manila Electric Co. vs. Remoquillo, it was evident that the danger of using uninsulated high voltage wires was disregarded because of the social value of providing electricity to the public. The same is true with respect to the manufacture of medicines. Even if the medicine has a foreseeable side effect and even if there is a possibility that consumers will not read the warning stated in the labels, the manufacture and sale thereof cannot be considered negligent considering the utility of the product involved. Similarly, “one driving a car in a thickly populated district on a rainy day, slowly and in the most careful manner, may do injury to the person of another by throwing muddy or infected water upon that person. Society does not hold the actor responsible because the benefit of allowing people to travel under such circ*mstances so far outweighs the probable injury to bystanders that such conduct is not disapproved. Circ*mstances may require the driver of a fire truck to take his truck through the thickly populated district at a high rate of speed, but if he exercises that degree of care which such drivers ordinarily exercise under the same or similar circ*mstances, society, weighing the benefits against the probabilities of damage, in spite of the fact that as a reasonably prudent and intelligent man should forsee that harm may result, justifies the risk and holds him not liable.” (Osborne vs. Montgomery, 234 N.W. 372 [1931]). A train will likewise be allowed to blow its horn even if animals will be frightened because the act is necessary in order to save lives. In another case, it was ruled that: “As has often been pointed out, if all the trains in the country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently

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important, justifies the assumption of abnormal risk.” (Daborn Bath Tramways [1946], 2 All E.R. 33 at 336, cited in W.V.H. Rogers, Winfield and Jolowicz on Torts, 1998 Ed. P. 182-183). This is not to say, however, that the duty to observe proper diligence is absent if the activity involved has a high social value. Any act which subjects an innocent person to an unnecessary risk is a negligent act if the risk outweighs the advantage accruing to the actor and even to the innocent person himself. (65 C.J.S. 448). Thus, the great utility of providing electricity to the public will not be given much weight if there are other circ*mstances which subjects innocent persons to unnecessary risk and which consequently offsets such great utility. In Astudillo vs. Manila Electric Co. (55 Phil. 427), the defendant was made liable because of the undue risk which was created in erecting electric poles and placing the wires and appliances near the place where persons will be injured. The poles involved in the case were very near the public place where persons come to stroll, to rest, and to enjoy themselves. The poles were so close to said place that a person would be able to hold one of the wires by reaching his arm out of the full length. A boy was electrocuted and died when he, for unknown reason, placed one foot at a projection, reached out and grasped a charged electric wire. In National Irrigation Administration (NIA for short) vs. Intermediate Appellate Court (214 SCRA 35, 39 [1992]), the Supreme Court adopted the finding that the petitioner NIA was negligent in installing an irrigation canal. It appears that NIA constructed irrigation canals on the landholding of the plaintiffs by scrapping away the surface of the said landholdings to raise the embankment of the canal. As a result of such construction, the landholding of the plaintiffs was inundated with water. The Supreme Court sustained the finding of the trial court that there was negligence because “although it cannot be denied that the irrigation canal of the NIA (was) a boon to the plaintiffs, the delay of almost 7 years in installing the safety measures such as check gates, drainage(s), ditches, and paddy drains has caused substantial damage to the annual harvest of the plaintiffs.”

(7) Person Exposed to the Risk.

The character of the person exposed to the risk is also a circ*mstance which should be considered in determining negligence. Consistent with this rule, a higher degree of diligence is required if the person involved is a child. In United States vs. Clemente (24 Phil. 178), for instance, the Supreme Court explained that greater degree

NEGLIGENCE

of care in driving is owed to children in the streets. In some cases, the law imposes a duty of care towards children even if ordinarily there is no duty under the same circ*mstances if the person involved is an adult with sufficient discretion. Thus, ordinarily no duty is owned by the owner of a tenement to trespassers except to refrain from willfully or wantonly injuring him. A trespasser is a person who enters the property of another without any right, or lawful authority, or express or implied license. (67 C.J.S. 659, 662). However, with respect to children, such duty of care is present even if they are trespassers because entry of children in a vacant lot may be foreseeable. The discussion in Taylor vs. Manila Electric Railroad (supra, at p. 32) in relation to this topic is worth quoting: “In typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for purposes of amusem*nt, enters upon the railroad company premises, at a place where the railroad company knew or had reason to suppose, children would likely to come, and there found explosive signal torpedoes left exposed by the railroad company’s employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable left in such condition as to make it probable that children, in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine. In these, and in a great variety of similar cases, the great weight of authority holds the owner of the premises liable. As laid down in Railroad Co. vs. Stout (17 Wall. [84 U.S.], 657), (wherein the principal question was whether a railroad company was liable for an injury received by an infant while upon its premises, from idle curiosity, or for purposes of amusem*nt, if such injury was, under the circ*mstances, attributable to the negligence of the company), the principles on which these cases turn are that “while railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;” and that “the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is

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to be determined in such case by the circ*mstances of the case.” The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply criticized in several state courts, and the Supreme Court of Michigan in the case of Ryan vs. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cased, especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language of the syllabus: (1) That the owner of land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that an invitation of license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that there is no difference between children and adults of an invitation or a license to enter upon another’s premises. Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States. On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q.B., 29, 35, 36), lay down the rule in these cases in accord with that announced in Railroad Company vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonald (152 U.S. 262) on the 5th of March, 1894, reexamined and reconsidered the doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the adjudged cases, both English and America, formally declared that it adhered “to the principles announced in the case of Railroad Co. vs. Stout.” In the case of Union Pacific Railway Co. vs. McDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the defendant’s premises, without defendant’s express permission or invitation, and, while there, was by an accident injured by falling into a burning slack pile of whose existence he had knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous condition, although defendant knew or had reason to believe that it was in a place where it would attract the

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interest or curiosity of passers-by. On these facts, the court held that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the defendant was under no obligation to make provision. We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what it said there is strikingly applicable in the case at bar, and would seem to dispose of defendant’s contention that, the plaintiff in this case being a trespasser, the defendant’s company owed him no duty, and in no case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant’s premises. “We adhere to the principle announced in Railroad Co. vs. Stout. (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all the persons from coming to its coal mine for purposes merely of curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally fall and be burned to death. Under all the circ*mstances, the railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to make provisions. “In Townsend vs. Wathen (9 East., 277, 281), it was held that if a man places dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs passing along the highway, or kept in his neighbor’s premises, would probably be attracted by their instinct into the traps, and in consequence of such act his neighbor’s dog be so attracted and thereby injured, an action on the case would lie. ‘What difference,’ said Lord Ellenborough, C.J., ‘is there a reason between drawing the animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?’ What difference, in reason we may observe in this case, is there

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between an express license to the children of this village to visit the defendant’s coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring to the case of Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, Volume 1, page 305, note well says: “It would be a barbarous rule of law that would make the owner of land liable for setting a trap thereon, baited with stinking meat, so that his neighbor’s dog attracted by his natural instincts, might run into it and be killed, and which would exempt him from liability for the consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child attracted to it and tempted to intermeddle with it by instincts equally strong, might thereby be killed or maimed for life.” Chief Justice Cooley, voicing the opinion of the Supreme Court of Michigan, in the case of Powers vs. Marlow (53 Mich., 507), said that (p. 515): “Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.” And the same eminent jurist in his treaties on torts, alluding to the doctrines of implied invitations to visit the premises of another, says: “In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus, leaving a tempting thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps if one were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise.” (Chap. 10, p. 303). The reasoning which led the Supreme Court of the United States to its conclusions in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra), is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found wherever the public permitted to congre-

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gate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressively or impliedly permitted to enter to or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, “must calculate upon this, and take precautions accordingly.” In such cases the owner of the premises can not be heard to say that because the child has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner’s failure to take reasonable precautions to prevent the child from entering premises at a place where he knows or ought to know that children are accustomed to roam about or to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does not enter under such conditions the owner’s failure to make reasonable precaution to guard the child against the injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, a negligent omission, for which he may and should be held responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be to expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. This conclusion is founded on reason, justice, and necessary, and neither the contention that a man has a right to do what he wills with his own property or that children should be kept under the care of the parents or guardian, so as to prevent their entering on the premises of others is of sufficient weight to put it in doubt. In this jurisdiction as well as in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the public rights and interests of the community (see U.S. vs. Toribio, 1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and unreasonable in community organized as is that in which we live to hold that parents or guardians are guilty of negligence or imprudence in every case wherein they permit growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parents could in any event be imputed to the child so as to deprive it of a right to recover in such cases — a point which we neither discuss nor

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decide.

It should be noted, however, that even with respect to trespassers of sufficient age and discretion, there are various limitations and particular circ*mstances which may give rise to the duty of care. For example, even if a person is technically a trespasser, the owner of the tenement may still be liable if the trespasser will be injured due to an excavation that is very near the highway. CASE: VALENZUELA vs. COURT OF APPEALS 253 SCRA 303 [1996] KAPUNAN, J.: These two petitions for review on certiorari under Rule 45 of the Revised Rules of Court stem from an action to recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuries sustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial court are succinctly summarized by the Court of Appeals below: This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in a vehicular accident. Plaintiff’s version of the accident is as follows: At around 2:00 o’clock in the morning of June 24, 1990, plaintiff Ma. Lourdes Valenzuela was driving a blue Mitsubishi Lancer with Plate No. FFU 542 from her restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home in that car’s condition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a 1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of defendant Alexander Commercial, Inc. Because of the impact, plaintiff was thrown against the windshield of the car of the defendant, which was destroyed, and then fell to the ground. She was pulled out from under defendant’s car. Plaintiff’s left leg was severed up to the middle of her thigh, with only some skin and sucle connected to the rest of the body. She was brought to the UERM Medical Memorial Center where she was found to have a “traumatic amputation leg, left up to distal thigh (above knee).” She was confined in the hospital for

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twenty (20) days and was eventually fitted with an artificial leg. The expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were paid by defendants from the car insurance. In her complaint, plaintiff prayed for moral damages in the amount of P1 million, exemplary damages in the amount of P100,000.00 and other medical and related expenses amounting to a total of P180,000.00, including loss of expected earnings. Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph; considering that it was raining, visibility was affected and the road was wet. Traffic was light. He testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San Juan, with a car coming from the opposite direction, travelling at 80 kph, with “full bright lights.” Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle, and bumped plaintiff’s car, which he did not see because it was midnight blue in color, with no parking lights or early warning device, and the area was poorly lighted. He alleged in his defense that the left rear portion of plaintiff’s car was protruding as it was then “at a standstill diagonally” on the outer portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of plaintiff’s witness that after being bumped the car of the plaintiff swerved to the right and hit another car parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or negligent, as she was not a licensed driver. The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the sketch of the three cars involved in the accident, testified that the plaintiff’s car was “near the sidewalk”; this witness did not remember whether the hazard lights of plaintiff’s car were on, and did not notice if there was an early warning device; there was a street light at the corner of Aurora Blvd. and F. Roman, about 100 meters away. It was not mostly dark, i.e., “things can be seen.” (p. 16, tsn, Oct. 28, 1991). A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from her car and opened the trunk compartment, defendant’s car came approaching very fast ten meters from the scene; the car was “zigzagging.” The rear left side of plaintiff’s car was bumped by the front right portion of defendant’s car; as a consequence, the plaintiff’s car swerved to the right and hit the parked car on the sidewalk. Plaintiff was thrown to the windshield of defendant’s car, which was destroyed, and landed under the car. He stated that defendant was under the influence of liquor as he could “smell it very well.” (pp. 43, 79, tsn, June 17, 1991). After trial, the lower court sustained the plaintiff’s submissions and found defendant Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. xxx

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It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it, in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court of Appeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact of the Court of Appeals are binding and conclusive upon us, and this Court will not normally disturb such factual findings unless the findings of fact of the said court are palpably unsupported by the evidence on record or unless the judgment itself is based on a misapprehension of facts. In the first place, Valenzuela’s version of the incident was fully corroborated by an uninterested witness, Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he testified that he observed a car being driven at a “very fast” speed, racing towards the general direction of Araneta Avenue. Rodriguez further added that he was standing in front of his establishment, just ten to twenty feet away from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield of the defendant’s Mitsubishi Lancer, from where she eventually fell under the defendant’s car. Spontaneously reacting to the incident, he crossed the street, noting that a man reeking with the smell of liquor had alighted from the offending vehicle in order to survey the incident. Equally important, Rodriguez declared that he observed Valenzuela’s car parked parallel and very near the sidewalk, contrary to Li’s allegation that Valenzuela’s car was close to the center of the right lane. We agree that as between Li’s “self-serving” asseverations and the observations of a witness who did not even know the accident victim personally and who immediately gave a statement of the incident similar to his testimony to the investigator immediately after the incident, the latter’s testimony deserves greater weight. As the court emphasized: The issue is one of credibility and from Our own examination of the transcript, We are not prepared to set aside the trial court’s reliance on the testimony of Rodriguez negating defendant’s assertion that he was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not necessarily impaired. He was subjected to cross-examination and no attempt was made to question his competence or the accuracy of his statement that defendant was driving “very fast.” This was the same statement he gave to the police investigator after the incident, as told to a newspaper report. (Exh. “P”). We see no compelling basis for disregarding his testimony. The alleged inconsistencies in Rodriguez’ testimony are not borne out by an examination of the testimony. Rodriguez testified that the scene of the accident was across the street where his beerhouse is located about ten to twenty feet away. (pp. 35-36, tsn, June 17, 1991). He did not state that the accident transpired immediately in front of his establishment. The ownership of the Lambingan sa Kambingan is not material; the business is registered in the name of his mother, but he explained that he owns the establishment. (p. 5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his side of Aurora Boulevard were on the night the accident transpired (p.

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8) is not necessarily contradictory to the testimony of Pfc. Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman Street. (p. 45, tsn, Oct. 20, 1991). With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain and the rain has stopped and he was outside his establishment at the time the accident transpired. (pp. 64-65, ts, June 17, 1991). This was consistent with plaintiff’s testimony that it was no longer raining when she left Bistro La Conga. (pp. 10-11, tsn, April 29, 1991). It was defendant Li who stated that it was raining all the way in an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn, Oct. 14, 1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene only in response to a telephone call after the accident had transpired. (pp. 9-10, tsn, Oct. 28, 1991). We find no substantial inconsistencies in Rodriguez’s testimony that would impair the essential integrity of his testimony or reflect on his honesty. We are compelled to affirm the trial court’s acceptance of the testimony of said eyewitness. Against the unassailable testimony of witness Rodriguez we note that Li’s testimony was peppered with so many inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to provide a version, obviously self-serving, which would exculpate him from any and all liability in the incident. Against Valenzuela’s corroborated claims, his allegations were neither backed up by other witnesses nor by the circ*mstances proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph. when “out of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff’s car.” He alleged that upon seeing this sudden “apparition” he put on his brakes to no avail as the road was slippery. One will have to suspend disbelief in order to give credence to Li’s disingenuous and patently self-serving asseverations. The average motorist alert to road conditions will have no difficulty applying the brakes to a car traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditions on a principal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the changing conditions of the road if he were alert — as every driver should be — to those conditions. Driving exacts a more than usual toll on the senses. Physiological “fight or flight” mechanisms are at work, provided such mechanisms were not dulled by drugs, alcohol, exhaustion, drowsiness, etc. Li’s failure to react in a manner which would have avoided the accident could therefore have been only due to either or both of the two factors: 1) that he was driving at a “very fast” speed as testified by Rodriguez; and 2) that he was under the influence of alcohol. Either factor working independently would have diminished his responsiveness to road conditions, since normally he would have slowed down prior to reaching Valenzuela’s car rather than be in a situation forcing him to suddenly apply his brakes. As the trial court noted (quoted with approval by respondent court);

Secondly, as narrated by defendant Richard Li to the San Juan Police

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immediately after the incident, he said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right in front of him, which was plaintiff’s car, indicating, again, thereby that, indeed, he was driving very fast, oblivious of his surroundings and the road ahead of him, because if he was not, then he could not have missed noticing at a still far distance the parked car of the plaintiff at the right side near the sidewalk which had its emergency lights on, thereby avoiding forcefully bumping at the plaintiff who was then standing at the left rear edge of her car. Since, according to him, in his narration to the San Juan Police, he put on his brakes when he saw the plaintiff’s car in front of him, but that it failed as the road was wet and slippery, this goes to show again, that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could have easily completely stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding that the road was wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only about 55 kilometers per hour, then, inspite of the wet and slippery road, he could have avoided hitting the plaintiff by the mere expedient or applying his brakes at the proper time and distance. It could not be true, therefore, as he now claims during his testimony, which is contrary to what he told the police immediately after the accident and is, therefore, more believable, that he did not actually step on his brakes, but simply swerved a little to the right when he saw the on-coming car with glaring headlights, from the opposite direction, in order to avoid it. For, had this been what he did, he would not have bumped the car of the plaintiff which was properly parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a little to the right in order to safely avoid a collision with the on-coming car, considering that Aurora Blvd. is a double lane avenue separated at the center by a dotted white paint, and there is plenty of space for both cars, since her car was running at the right lane going towards Manila and the on-coming car was also on its right lane going to Cubao.” Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer, the next question for us to determine is whether or not Valenzuela was likewise guilty of contributory negligence in parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone. We agree with the respondent court that Valenzuela was not guilty of contributory negligence. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Based on the foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed for her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannot agree.

NEGLIGENCE

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening conditions. Under the “emergency rule” adopted by this court in Gan vs. Court of Appeals, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoid hitting two children suddenly darting into the street, we held, in McKee vs. Intermediate Appellate Court, that the driver therein, Jose Koh, “adopted the best means possible in the given situation” to avoid hitting the children. Using the “emergency rule” the court concluded that Koh, in spite of the fact that he was in the wrong lane when the collision with an oncoming truck occurred, was not guilty of negligence. While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates thoughtful care, but by the over-all nature of the circ*mstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under the situation. As narrated by respondent court: “She stopped at a lighted place where there are people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car.” In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuela’s car was parked very close to the sidewalk. The sketch which he prepared after the incident showed Valenzuela’s car partly straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony

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of witness Rodriguez. Under the circ*mstances described, Valenzuela did exercise the standard reasonably dictated by the emergency and could not be considered to have contributed to the unfortunate circ*mstances which eventually led to the amputation of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora Boulevard was not of her own making, and it was evident that she had taken all reasonable precautions. Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the accident. “Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others.” It is the failure to observe that degree of care, precaution, and vigilance which the circ*mstances justly demand, whereby such other person suffers injury. We stressed, in Corliss vs. Manila Railroad Company, that negligence is the want of care required by the circ*mstances. The circ*mstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M. after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence on record to show that he was under the influence of liquor. Under these conditions, his chances of effectively dealing with changing conditions on the road were significantly lessened. As Prosser and Keaton emphasized: [U]nder present day traffic conditions, any driver of an automobile must be prepared for the sudden appearance of obstacles and persons on the highway, and of other vehicles at intersections, such as one who sees a child on the curb may be required to anticipate its sudden dash into the street, and his failure to act properly when they appear may be found to amount to negligence. Li’s obvious unpreparedness to cope with the situation confronting him on the night of the accident was clearly of his own making.

4.

STANDARD OF CONDUCT: GOOD FATHER OF A FAMILY

The Supreme Court explained in Picart vs. Smith (supra, at p. 37) that the standard of conduct used in the Philippines is that of paterfamilias in Roman law or that who is referred to in Article 1173 of the Civil Code (in rel. Art. 2178) as a good father of a family. What should be determined in negligence cases is what is foreseeable to a good father of a family. A good father of a family is likewise referred to as the reasonable man, man of ordinary intelligence and prudence, or ordinary reasonable prudent man. In English law, he is sometimes referred to as the man on top of a Clapham omnibus. (Bolam vs. Friern Hospital Management Committee, 2 All E.R. 119 Queens Bench Div. [1957]).

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Justice Holmes provided a classic discussion on the concept of a reasonable man in The Common Law (107-10 [1881]; see Corliss vs. Manila Railroad Company, supra, at p. 37): “The standards of the law are standards of general application. The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of given act so different in different men. It does not attempt to see men as God sees them, for more than one sufficient reason. In the first place, the impossibility of nicely measuring a man’s power and limitations is far clearer than that of ascertaining his knowledge of law, which has been thought to account for what is called the presumption that every man knows the law. But a more satisfactory explanation is, that, when men live in society, a certain average conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare. If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account. The rule that the law does, in general, determine liability by blameworthiness, is subject to the limitation that minute differences of character are not allowed for. The law considers, in other words, what would be blameworthy in the average man, the man of ordinary intelligence and prudence, and determines liability by that. If we fall below the level in those gifts, it is our misfortune; so much as that we must have our peril, for the reasons just given. But who is intelligent and prudent does not act at his peril, in theory of law. On the contrary, it is only when he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is answerable for the consequences. There are exceptions to the principle that every man is presumed to possess ordinary capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of liability in general. When a man has a distinct defect of such a nature that all can recognize it as making certain precautions impossible, he will not be held answerable for not taking them. A blind man is not required to see at his peril; and although he is, no doubt, bound to consider his infirmity in regulating his actions, yet if he properly finds himself in a certain situation, the neglect of precautions requiring eyesight would not prevent his recovering for an injury to himself, and, it may be presumed, would not make him liable for injuring another. So it is held that,

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in cases where he is the plaintiff, an infant of very tender years is only bound to take precautions of which an infant is capable; the same principle may be cautiously applied where he is defendant. Insanity is more difficult matter to deal with, and no general rule can be laid down about it. There can be no doubt that in many cases, a man may be insane, and yet perfectly capable of taking precautions, and of being influenced by the motives, which the circ*mstances demand. But if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying with the rule which he has broken, good sense would require it to be admitted as an excuse. Taking the qualification last established in connection with the general proposition previously laid down, it will now be assumed that, on one hand, the law presumes or requires a man to possess ordinary capacity to avoid harming his neighbors, unless a clear and manifest incapacity is shown; but that, on the other, it does not in general hold him liable for unintentional injury, unless, possessing such capacity, he might and ought to have foreseen the danger, or, in other words, unless a man of ordinary intelligence and forethought would have been to blame for acting as he did. Notwithstanding the fact that the grounds of legal liability are moral to the extent above explained, it must be born in mind that law only works within the sphere of the senses. If external phenomena, the manifest acts and omissions, are such as it requires it is wholly indifferent to the internal phenomena of conscience. A man may have as bad a heart as he chooses, if his conduct is whithin the rules. In other words, the standards of the law are external standards, and, however much may take moral considerations into account, it does so only for the purpose of drawing a line between such bodily motions and rests it permits, and such as it does not. What the law forbids, and the only thing it forbids, is the act on the wrong side of the line, be that act blameworthy or otherwise. . . .”

Winfield and Jolowicz on Torts, said to be the leading tort book in England, contains this description of a reasonable man, although said to be only a rough approximation to exactness: “x x x In any broad sense can be extracted from various significations of ‘reasonable conduct’ it might be described as the behaviour of the ordinary person in any particular event or transaction, including in such behaviour obedience to the special directions (if any) which the law gives him for his guidance in that connection. This is, of course, an abstraction. Lord Bowen visualized the reasonable man as ‘the man on the Clapham omnibus’; an American writer as ‘the man who takes the magazine at home, and in the

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evening pushes the lawnmower in his short sleeves.’ He has not the courage of Achilles, the wisdom of Ulysses or the strength of Hercules nor has he ‘the prophetic vision of a clairvoyant.’ He will not anticipate folly in all its forms, but he never puts out of consideration the teachings of experience and so will guard against the negligence of others when experience shows such negligence to be common. He is a reasonable man but he is neither a perfect citizen nor a ‘paragon of circ*mspection.’” (W.V.H. Rogers, Winfield & Jolowicz on Torts, 1998 15th Edition, p. 53).

A.

ATTRIBUTES OF A GOOD FATHER OF A FAMILY.

The Philippine concept of a reasonable man is consistent with the above-quoted description. The law considers what would be reckless, blameworthy or negligent in the man of ordinary intelligence and prudence. The attributes of the actor and the person exposed to the risk are circ*mstances that are also material in the determination of negligence on the part of the actor and contributory negligence on the part of the plaintiff. There is only one standard, an objective standard.

a.

Knowledge and Experience of the Actor.

The prudent man is expected to act according to the circ*mstances that appear to him at the time of the incident and he is not judged based on his knowledge or experience after the event. (67 C.J.S 528). The law does not require the standard of one who is fortified with a gift of prophesy or one who is omniscient of the future (Picart vs. Smith, supra; Adams vs. Bullock, 227 N.Y. 208, 125 N.E. 93 [1919]). However, there are matters which a prudent man is conclusively presumed to know based on actual knowledge and experience. For instance, where a particular act is followed from past acts or omissions, one is charged with notice that a similar act or omission, may produce a similar result. (67 C.J.S 527). If the actor is familiar with the place of the accident because he always passes by such area, he is also charged with the knowledge of the make-up of the same area. In PLDT Company, Inc. vs. Court of Appeals (No. 57079, September 29, 1989), the plaintiff was not able to recover from the defendant telephone company even if he was injured because of the excavation of the company in the street. He sustained such injuries when his jeep ran over a mound of earth and fell into an open trench dug by the telephone company for its underground conduit system. Although there were no warning signs in the area, the plaintiff was not allowed to recover because he had knowledge of the presence and location of the excavations, having passed on the same street almost everyday.

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He was found negligent in exercising due care for his own safety. In Corliss vs. Manila Railroad Company (supra, p. 685), knowledge of the victim was also considered material in determining his negligence in crossing the railroad resulting in his death. The Supreme Court affirmed the trial court’s reliance on several circ*mstances, including the victim’s knowledge and familiarity with the set-up of the check point and the existence of the tracks. A reasonable man is also deemed to have knowledge of facts that a man should be expected to know based on ordinary human experience. For instance, a reasonable man can be expected to know the effect of heavy rains on the road or a railroad track. (Philippine National Railway vs. Intermediate Appellate Court, 217 SCRA 409, 414 [1993]). Experience teaches that a driver should anticipate sudden appearance of other vehicles at an intersection or if a driver sees a child on a curb, he may anticipate the child’s sudden dash into the street. (Valenzuela vs. Court of Appeals, supra at p. 671). One should also expect children to roam around vacant lots (Taylor vs. Manila Electric and Light Co., 16 Phil. 8 [1910]) and should be expected to know the natural reaction of animals to frightening objects. (Picart vs. Smith, supra). A prudent man should also be expected to know basic laws of nature and physics like gravity. For example, a driver is expected to know that his vehicle will accelerate if the street is going downhill. Any person is also expected to know that a boulder might fall from a high place if it was placed there in a precarious state.

b. Children.

The rule that there is one standard of conduct — that of a reasonable man — is subject to certain exceptions or qualifications. Thus, the action of the child will not necessarily be judged according to the standard of an ordinary adult. Neither will an expert be judged based on what a non-expert can foresee. The rule in this jurisdiction is that “the care and caution required of a child is according to his maturity and capacity only and this is to be determined in each case by the circ*mstances of the case.” (Taylor vs. Manila Electric Railroad and Light Co., 16 Phil. 8 [1910]). If a minor is mature enough to understand and appreciate the nature and consequences of his actions, he will be considered negligent if he fails to exercise due care and precaution in the commission of such acts. The Court explained in Taylor vs. Manila Electric Railroad and Light Co. (ibid.), however that “the law fixes no arbitrary age at which a minor can be said to have the necessary capacity to under-

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stand and appreciate the nature and consequences of his acts, so as to make it negligence on his part to exercise due care and precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him.” The Court went on to explain that: “x x x But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable of exercising certain rights and incurring certain responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circ*mstances of each case.”

It should be noted in this connection that under the Revised Penal Code, a child who is age nine (9) or below is exempt from criminal liability. (Art. 8). A child over nine (9) but below fifteen (15) is likewise exempt from criminal liability if he acted without discernment. Under the Family Code and the Child and Youth Welfare Code, the choice of the child who is at least 12 where his custody is in question is to be respected unless there is no valid reason to accord the same with respect. The consent of children who are at least ten (10) of the person who will adopt and the natural parents of the person to be adopted are likewise required in adoption cases. Applying the provisions of the Revised Penal Code, Judge Sanco takes the view that a child who is nine (9) or below is conclusively presumed to be incapable of negligence. (1 Sanco, Phil. Law on Torts and Damages, 70-71). On the other hand, if the child is above nine (9) but below fifteen (15), there is a disputable presumption of absence of negligence. Judge Sanco’s opinion was adopted in Jarco Marketing Corporation et al. vs. Honorable Court of Appeals, et al. (G.R. No. 129792, December 21, 1999), where the High Court quoted the following portion of his work: “In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless

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it is shown that he has acted with discernment. Since negligence may be a felony and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law.”

The doctrine in Jarco Marketing Corporation et al. v. Court of Appeals (ibid.) therefore modifies the rule laid down in Taylor v. Manila Electric Railroad and Light Co. (supra.). If the child is under nine years, it is no longer necessary to determine his maturity and capacity because he is conclusively presumed to be incapable of negligence. If the child is above nine to fifteen, he is disputably presumed to be incapable of negligence but the opposing party can prove that the child is at such stage of maturity and capacity that he can already determine what a reasonable man would do under the same circ*mstances.

(1) Liability of children.

It should be noted, however, that the absence of negligence does not necessarily mean absence of liability. Thus, under the Revised Penal Code, a child who is nine years old can still be subsidiarily liable with his properties. (Art. 101, Revised Penal Code). This liability is considered liability without fault. (1 Aquino, Revised Penal Code 883). Similarly, the absence of negligence or intent on the part of the child may not excuse the parents from their vicarious liability under Article 2180 of the Civil Code or Art. 221 of the Family Code because they are liable for their own negligence in the supervision of their child. The minor child, on the other hand, shall be answerable with his own property in an action against him if he has no parents or guardian. The Supreme Court in interpreting the provisions of the Old Civil Code on tort explained that if the theory of the action is culpa aquiliana, the minority of the actor does not free him from responsibility for damages. The Court further explained that the liability of an infant in a civil action for his torts is imposed as a mode, not of punishment, but for compensation. If property had been destroyed or other loss was occasioned by a wrongful act, it is just that the loss should fall upon the estate of the wrongdoer rather than that of the guiltless person, and that liability is imposed without reference to the question of moral guilt. Consequently, for every tortious act of

NEGLIGENCE

violence or other pure tort, the infant tortfeasor is liable in a civil action to the injured person in the same extent as an adult. (Magtibay vs. Tionco, 74 Phil. 576, 578-579 [1944]). In other words, the effect of the circ*mstance that the actor is a child would vary if the child is the defendant-actor or the plaintiff. The circ*mstance becomes material if the child is the person exposed to the risk. If the child is the actor, even if he is legally incapable of discernment because he is, for example, only six (6) years old, the parents or any person exercising parental authority over him may still be liable if they did not exercise proper diligence in supervising the child. The actor himself is liable up to the extent of his properties. CASES: JULIAN DEL ROSARIO vs. MANILA ELECTRIC CO. 57 Phil. 478 [1932] STREET, J.: This action was instituted by Julian del Rosario for the purpose of recovering damages from the Manila Electric Company for the death of his son, Alberto del Rosario, resulting from a shock from a wire used by the defendant for the transmission of electricity. The accident occurred on Dimasalang Street, in the municipality of Caloocan, Province of Rizal. Damages are claimed in the complaint in the amount of P30,000. Upon hearing the case, the trial court absolved the defendant, and the plaintiff appealed. Shortly after 2 o’clock on the afternoon of August 4, 1930, trouble developed in a wire used by the defendant on Dimasalang Street for the purpose of conducting electricity used in lighting the City of Manila and its suburbs. Jose Noguera, who had charge of a tienda nearby, first noticed that the wire was burning and its connections smoking. In a short while, the wire parted and one of the ends of the wire fell to the ground among some shrubbery close to the way. As soon as Noguera took cognizance of the trouble, he stepped into a garage which was located nearby and asked Jose Soco, the timekeeper, to telephone the Malabon station of the Manila Electric Company that an electrical wire was burning at that place. Soco transmitted the message at 2:25 p.m. and received answer from the station to the effect that they would send an inspector. From the testimony of the two witnesses mentioned, we are justified in the conclusion that information to the effect that the electric wire at the point mentioned had developed trouble was received by the company’s servant at the time stated. At the time that message was sent the wire had not yet parted, but from the testimony of Demetrio Bingao, one of the witnesses for the defense, it is clear that the end of the wire was on the ground shortly after 3 p.m.

At 4 p.m. the neighborhood school was dismissed and the children went

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home. Among these was Alberto del Rosario, of the age of 9 years, who was a few paces ahead of two other boys, all members of the second grade in the public school. These other two boys were Jose Salvador, of the age of 8, and Saturnino Endrina, of the age of 10. As the three neared the place where the wire was down, Saturnino made a motion as if to touch it. His companion, Jose Salvador, happened to be the son of an electrician and his father had cautioned him never to touch a broken electrical wire, as it might have a current. Jose therefore stopped Saturnino, telling him that the wire might be charged. Saturnino yielded to this admonition and desisted from his design, but Alberto del Rosario, who was somewhat ahead, said, I have for some time been in the habit of touching wires (“Yo desde hace tiempo cojo alambres”). Jose Salvador rejoined that he should not touch wires as they carry a current, but Alberto, no doubt feeling that he was challenged in the matter, put out his index finger and touch the wire. He immediately fell face downwards, exclaiming “Ay! madre.” The end of the wire remained in contact with his body which fell near the post. A crowd soon collected, and someone cut the wire and disengaged the body. Upon being taken to St. Luke’s Hospital the child was pronounced dead. The wire was an ordinary number 6 triple weather proof wire, such as is commonly used by the defendant company for the purpose of conducting electricity for lighting. The wire was cased in the usual covering, but this had been burned off for some distance from the point where the wire parted. The engineer of the company says that it was customary for the company to make a special inspection of these wires at least once in six months, and that all of the company’s inspectors were required in their daily rounds to keep a lookout for trouble of this kind. There is nothing in the record indicating any particular cause for the parting of the wire. We are of the opinion that the presumption of negligence on the part of the company from the breakage of this wire has not been overcome, and the defendant is in our opinion responsible for the accident. Furthermore, when notice was received at the Malabon station at 2:25 p.m., somebody should have been dispatched to the scene of the trouble at once, or other measures taken to guard the point of danger; but more than an hour and a half passed before anyone representing the company appeared on the scene, and in the meantime this child had been claimed as a victim. It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his immature years and the natural curiosity which a child would feel to do something out of the ordinary, and the mere fact that the deceased ignored the caution of a companion of the age of 8 years does not, in our opinion, alter the case. But even supposing that contributory negligence could in some measure be properly imputed to the deceased, — a proposition upon which the members of the court do not all agree, — yet such negligence would not be wholly fatal to the right of action in this case, not having been the determining cause of the accident. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. 359).

With respect to the amount of damages recoverable, the majority of

NEGLIGENCE

the members of this court are of the opinion that the plaintiff is entitled to recover P250 for expenses incurred in connection with the death and burial of the boy. For the rest, in accordance with the precedents cited in Astudillo vs. Manila Electric Company (55 Phil. 427), the majority of the court are of the opinion that the plaintiff should recover the sum of P1,000 as general damages for loss of service. The judgment appealed from is therefore reversed and the plaintiff will recover the defendant the sum of P1,250, with costs of both instances. So ordered. TAYLOR vs. MANILA ELECTRIC RAILROAD AND LIGHT CO. 16 Phil. 8 [1910] An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative. The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island. The plaintiff, David Taylor, was, at the time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics. On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge of the Isla del Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who had promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the company’s premises. The visit was made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr. Murphy. After watching the operation of the traveling crane used in handling the defendant’s coal, they walked across the open space in the neighborhood of the place where the company dumped the cinders and ashes from its furnaces. Here, they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves considerable explosive power. After some discussion as to the ownership of caps, and their right to take them, the boys picked up all they could find, hung

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them to a stick, of which each took one end, and carried them home. After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy named Manuel. The boys then made a series of experiments with the caps. They thrust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not find one. They then opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who, when the boys proposed purring a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to necessitate its removal by the surgeons who were called in to care for his wounds. The evidence does not definitely and conclusively disclose how the caps came to be on the defendant’s premises, not how long they had been there when the boys found them. It appeared, however, that some months before the accident, during the construction of the defendant’s plant, detonating caps of the same kind as those found by the boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found, similar caps were in use in the construction of an extension of defendant’s street car line to Fort William McKinley. The caps when found appeared to the boys who picked them up to have been lying there for a considerable time, and from the place where they were found would seem to have been discarded as defective or worthless and only to be thrown upon the rubbish heap. No measures seem to have been adapted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed as to do. As admitted in defendant counsel’s brief, “it is undoubtedly true that children in their play sometimes crossed the footbridge to the island;” and, we may add, roamed about at will on the unenclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is no evidence that any effort ever was made to forbid these children from visiting the defendant company’s premises, although it must be assumed that the company or its employees were aware of the fact that they not infrequently did so. Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the inter-island transports. Later he took upon work in his father’s office learning mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in the employment for six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen.

NEGLIGENCE

[The Supreme Court went on to explain that evidence tends to disclose that the caps and detonators belong to the respondent and that they were willfully and knowingly thrown by the company or its employees at the spot where they were found with the expectation that they would be buried out of sight by the ashes which it was engaged in dumping in the neighborhood. The Court also said that it was satisfied that the company or some of its employees either willfully or through oversight left them exposed at a point on its premises which the general public, including children at play, were not prohibited from visiting, and over which the company knew or ought to have known that young boys were likely to roam about in pastime or in play. Nevertheless, no liability was imposed on the company.] We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence:

(1)

Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty. (3) The connection of cause and effect between the negligence and the damage. The propositions are, or course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in the case under consideration. It is clear that the accident could not have happened had not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon defendant’s premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. But counsel for plaintiff contends that because of plaintiff’s youth and inexperience, his entry upon defendant company’s premises, and the intervention of his action between the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise accident, which should be deemed to be the direct result of defendant’s negligence in leaving the caps exposed at the place where they were found by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries sustained by him. In support of his contention, counsel for plaintiff relied on the doctrine laid down in many of the courts in the United States in the cases known as the “Torpedo” and “Turntable” cases, and the cases based thereon.

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In the typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for purposes of amusem*nt, enters upon the railroad company’s premises, at a place where the railroad company knew, or had a good reason to suppose, children who would likely to come, and there found explosive signal torpedoes left exposed by the railroad company’s employees, one of which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable left in such condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with such machine. In these, and in a great variety of similar cases, the great weight of authority holds the owner of the premises liable. [The Supreme Court went on to discuss the rules laid down in the “Torpedo” and “Turntable” cases and held that the same are applicable in this jurisdiction.] xxx But while we hold that the entry of the plaintiff upon defendant’s property without defendant’s express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by the plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of the opinion that under all the circ*mstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, “attributable to the negligence of the defendant,” and, on the other hand, we are satisfied that plaintiff’s action in cutting open the detonating cap and putting a match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore, is not civilly responsible for the injuries thus incurred. Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff’s youth the intervention of his action between the negligent act of the defendant leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is because we can not agree with this proposition, although we accept the doctrine on the Turntable and Torpedo cases, that we have thought proper to discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs. Stout (supra), “While it is the general rule in regard to an adult that entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circ*mstance of the case.” As we think we have shown,

NEGLIGENCE

under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries resulting from negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant’s unenclosed premises without express permission or invitation; but it is a wholly different question whether such a youth can be said to have been free from fault when he willfully and deliberately cut upon the detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by “the particular circ*mstances of this case,” the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the “Torpedo” and analogous cases to which our attention has been directed, the record discloses that the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands. In the case at bar, plaintiff at the time of the accident was well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well-qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stands, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the applications of a match to the contents of the cap, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was with him at the time when he put the match to the contents of the cap, became frightened and ran away. True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that “according to his maturity and capacity” he exercised such “care and caution” as might reasonably be required of him, or that the defendant or anyone else should be held civilly responsible for injuries incurred by him under such circ*mstances. The law fixed no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as to make it negligence on his part to fail to exercise with due care and precaution in the commission of such acts; and indeed it would

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be impracticable and perhaps impossible so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their consequences; and the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages fixed by our laws at which minors are conclusively presumed to be capable to exercising certain rights and incurring certain responsibilities, though it can not be said that these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become responsible for his own acts varies with the varying circ*mstances of each case. Under the provisions of the Penal code a minor over fifteen years of age is presumed to be capable of committing a crime and is to be held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as an extenuating circ*mstance. (Penal Code, Arts. 8 and 9). At 10 years of age, a child may, under certain circ*mstances, choose which parent it prefers to live with. (Code of Civil Procedure, sec. 771). At 14, it may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted. (Id., sec. 765). We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible to the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligent act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff’s own act was the proximate and principal cause of the accident which inflicted the injury. xxx We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the accident which resulted in plaintiff’s injury, was his own act of putting a match to the contents of the cap, and that having “contributed to the principal occurrence, as one of its determining factors, he can not recover.” We have not deemed it necessary to examine the effect of plaintiff’s action in picking up upon defendant’s premises the detonating caps, the property of the defendant, and carrying them away to the home of his friend, as interrupting the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant

NEGLIGENCE

of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well known facts admitted in defendant’s brief that “boys are snappers-up of unconsidered trifles,” a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the circ*mstances of this case, we neither discuss nor decide. FEDERICO YLARDE, et al. vs. EDGARDO AQUINO 163 SCRA 697 [1988] July 29, 1988 In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School, a public educational institution located in Tayug, Pangasinan. Private respondent Edgardo Aquino was a teacher therein. At that time, the school was littered with several concrete blocks which were remnants of the old school shop that was destroyed in World War II. Realizing that the huge stones were serious hazards to the schoolchildren, another teacher by the name of Sergio Banez started burying them one by one as early as 1962. In fact, he was able to bury ten of these blocks all by himself. Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein the stone can be buried. The work was left unfinished. The following day, also after classes, private respondent Aquino called four of the original eighteen pupils to continue the digging. These four pupils — Reynaldo Alonso, Fransico Alcantara, Ismael Abaga and Novelito Ylarde, dug until the excavation was one meter and forty centimeters deep. At this point, private respondent Aquino alone continued digging while the pupils remained inside the pit throwing out the loose soil that was brought about by the digging. When the depth was right enough to accommodate the concrete block, private respondent Aquino and his four pupils got out of the hole. Then, said private respondent left the children to level the loose soil around the open hole while he went to see Banez who was about thirty meters away. Private respondent wanted to borrow from Banez the key to the school workroom where he could get some rope. Before leaving, private respondent Aquino allegedly told the children “not to touch the stone.” A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga jumped on top of the concrete block causing it to slide down towards the opening. Alonso and Alcantara were able to scramble out of the excavation on time but unfortunately for Ylarde, the concrete block caught him before he could get out, pinning him to the wall in a standing position. As a result thereof, Ylarde sustained the following injuries: xxx

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Three days later, Novelito Ylarde died.

Ylarde’s parents, petitioners in this case, filed a suit for damages against both private respondents Aquino and Soriano. The lower court dismissed the complaint on the following grounds: (1) that the digging done by the pupils is in line with their course called Work Education; (2) that Aquino exercised the utmost diligence of a very cautious person; and (3) that the demise of Ylarde was due to his own reckless imprudence. On appeal, the Court of Appeals affirmed the Decision of the lower court. Petitioners based their action against private respondent Aquino on Article 2176 of the Civil Code for his alleged negligence that caused their son’s death while the complaint against respondent Soriano as the head of school is founded on Article 2180 of the same Code. xxx With this in mind, the question We need to answer is this: Were there acts and omissions on the part of private respondent Aquino amounting to fault or negligence which have direct causal relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for damages. From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children’s safety; and (5) left the children close to the excavation, an obviously attractive nuisance. The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they were facing, three of them jumped into the hole while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the lives of

NEGLIGENCE

all the pupils concerned to real danger. We cannot agree with the finding of the lower court that the injuries which resulted in the death of the child Ylarde were caused by his own reckless imprudence. It should be remembered that he was only ten years old at the time of the incident. As such, he is expected to be playful and daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him but the three of them who jumped into the hole while the remaining boy jumped on the block. From this, it is clear that he only did what any other ten-year old child would do in the same situation. In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his age and maturity. This should not be the case. The degree of care required to be exercised must vary with the capacity of the person endangered to care for himself. A minor should not be held to the same degree of care as an adult, but his conduct should be judged according to the average conduct of persons of his age and experience. The standard of conduct to which a child must conform for his own protection is that degree of care ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience under the same or similar circ*mstances. Bearing this in mind, We cannot charge the child Ylarde with reckless imprudence. The court is not persuaded that the digging done by the pupils can pass as part of their Work Education. A single glance at the picture showing the excavation and the huge concrete block would reveal a dangerous site requiring the attendance of strong, mature laborers and not ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise when private respondent Aquino himself admitted that there were no instructions from the principal requiring what the pupils were told to do. Nor was there any showing that it was included in the lesson plan for their Work Education. Even the Court of Appeals made mention of the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the concrete remnants of the old school shop. Furthermore, the excavation should not be placed in the category of school gardening, planting trees, and the like as these undertakings do not expose the children to any risk that could result in death or physical injuries. The contention that private respondent Aquino exercised the utmost diligence of a very cautious person is certainly without cogent basis. A reasonably prudent person would have foreseen that bringing children to an excavation site, and more so, leaving them there all by themselves, may result in an accident. An ordinarily careful human being would not assume that a simple warning “not to touch the stone” is sufficient to cast away all the serious danger that a huge concrete block adjacent to an excavation would present to the children. Moreover, a teacher who stands in loco parentis to his pupils would have made sure that the children are protected from all harm in his company.

We close by categorically stating that a truly careful and cautious per-

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son would have acted in all contrast to the way private respondent Aquino did. Were it not for his gross negligence, the unfortunate incident would not have occurred and the child Ylarde would probably be alive today, a grownman of thirty-five. Due to his failure to take the necessary precautions to avoid the hazard, Ylarde’s parents suffered great anguish all these years.

c.

Physical Disability.

In The Common Law, Justice Holmes explained that the weaknesses of a person will not be an excuse in negligence cases. A weak, clumsy or accident prone person must come up to the standard of a reasonable man, otherwise, he will be considered negligent. Justice Holmes, therefore, subscribes to the view of the Romans. In Justinian’s Digest of Roman Law, Ulpian is credited with the following explanation: “8. And the law is just the same if one misuses a drug, or if having operated efficiently, the aftercare is neglected; the wrongdoer will not go free, but is deemed to be guilty of negligence. Furthermore, if a mule-driver cannot control his mules because he is inexperienced and as a result they run down somebody’s slave, he is generally said to be liable on grounds of negligence. It is the same if it is because of weakness that he cannot hold back his mules – and it does not seem unreasonable that weakness should be deemed negligence, for one should undertake a task in which he knows, or ought to know, that his weakness may be a danger to others. The legal position is just the same for a person who through inexperience or weakness cannot control a horse he is riding.” (C.P. Kolbert translation, 1979 Ed., p. 75).

However, the rule is different if the defect is not a mere weakness but one amounting to real disability. The Constitution recognizes the rights of disabled persons. In fact, it mandates the creation of a “special agency for disabled persons for their rehabilitation, self-development and self-reliance, and their integration in the mainstream of the society.” (Section 13, Article XIII, 1987 Constitution). The same principle for the integration of the disabled in the mainstream of society is being upheld under existing laws, particularly Republic Act No. 7277 otherwise known as the Magna Carta for Disabled Persons. Nevertheless, integration of a disabled person in the mainstream of society does not mean that he will be treated exactly the same way as one who is not. A person who is physically disabled cannot be expected to act as if he is not disabled. Thus, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable person under like disability. For example, in the case of a blind

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man, he must take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind. (Roberts vs. State of Lousiana, 396 So. 2d 566 [1981], citing W. Prosser, The Law of Torts, Section 32, at Pages 151-152, 4th ed., 1971). A person who is suffering from physical disability must, however, refrain from activities which a reasonable person suffering from such disability would not undertake. Obviously, a blind person should refrain from driving altogether. CASES: UNITED STATES vs. BONIFACIO 34 Phil. 65 [1916] CARSON, J.: The appellant in this case was charged in the court below with homicidio por imprudencia temeraria (homicide committed with reckless negligence), and was convicted of homicidio committed with simple negligence and sentenced to four months and one day of arresto mayor and to pay the costs of the proceedings.

The information charges the commission of the offense as follows:

“On or about the 31st day of October of the present year, 1913, in the barrio of Santa Rita of the municipality of Batangas, Batangas, the accused, being an engineer and while conducting the freight train which was going to the municipality of Bauan, at about 10 o’clock in the morning of the said day saw that Eligio Castillo, a deaf-mute, was traveling along the railroad track, and as the said Castillo did not get off of the said track in spite of the whistles or warnings given by the accused, the accused did maliciously and criminally cause the said train to run over the said Castillo, thereby killing him instantly; an act committed with violation of law.” On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed, while attempting to cross the railroad track in the barrio of Santa Rita, Batangas, by an engine on which the accused was employed as engineer. The deaf-mute stepped out on the track from an adjoining field shortly before the accident, walked along one side of the track for some little distance and was killed as he attempted, for some unknown reason, to cross over to the other side. When the accused engineer first saw the deceased, he was walking near the track, in the same direction as that in which the train was running. The train, a heavy freight train, had just rounded a curve, and the man in front was about 175 meters ahead of the engine. The engineer immediately blew his whistle twice, and noticing, a few moments afterwards, that the man in front did not respond to the warning by stepping aside from the track, he tried to slow down the engine, but did not succeed in stopping in time to avoid

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running down the pedestrian. He did not attempt to stop his engine when he first saw the man walking along the side of the track; but he claims that he did all in his power to slow down a few moments afterwards, that is to say after he had blown his whistle without apparently attracting the attention of the pedestrian, who, about that time, turned and attempted to cross the track. The only evidence as to the rate of speed at which the train was running at the time of the accident was the testimony of the accused himself, who said that his indicator showed that he was travelling at the rate of 35 kilometers an hour, the maximum speed permitted under the railroad regulations for freight trains on that road. There was a heavy decline in the track from the turn at the curve to a point some distance beyond the place where the accident took place, and the undisputed evidence discloses that a heavy freight train running at the rate of 35 miles an hour could not be brought to a stop on that decline in much less than one hundred and fifty meters. We think that the mere statement of facts, as disclosed by the undisputed evidence of record, sufficiently and conclusively demonstrates that the death of the deaf-mute was the result of a regrettable accident, which was unavoidable so far as this accused was concerned. It has been suggested that, had the accused applied his brakes when he first saw the man walking near the track, after his engine rounded the curve, he might have stopped the train in time to have avoided the accident, as it is admitted that the distance from the curve to the point where the accident occurred was about 175 meters. But there is no obligation on an engine driver to stop, or even to slow down his engine, when he sees an adult pedestrian standing or walking on or near the track, unless there is something in the appearance or conduct of the person on foot which would cause a prudent man to anticipate the possibility that such person could not, or would not avoid the possibility of danger by stepping aside. Ordinarily, all that may properly be required of an engine driver under such circ*mstances is that he give warning of his approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian has been attracted to the oncoming train. Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction of injury upon any person who may happen to be on the track in front of his engine, and to slow down, or stop altogether if that be necessary, should he have reason to believe that only by doing so can an accident be averted. But an engine driver may fairly assume that all persons walking or standing on or near the railroad track, except children of tender years, are aware of the danger to which they are exposed; and that they will take reasonable precautions to avoid accident, by looking and listening for the approach of trains, and stepping out of the way of danger when their attention

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is directed to an oncoming train. Any other rule would render it impracticable to operate railroads so as to secure the expeditious transportation of passengers and freight which the public interest demands. If engine drivers were required to slow down or stop their trains every time they see a pedestrian on or near the track of the railroad it might well become impossible for them to maintain a reasonable rate of speed. As a result, the general traveling public would be exposed to great inconvenience and delay which may be, and is readily avoided by requiring all persons approaching a railroad track, to take reasonable precautions against danger from trains running at high speed. There was nothing in the appearance or conduct of the victim of the accident in the case at bar which would have warned the accused engine driver that the man walking along the side of the track was a deaf-mute, and that despite the blowing of the whistle and the noise of the engine, he was unconscious of his danger. It was not until the pedestrian attempted to cross the track, just in front of the train, that the accused had any reason to believe that his warning signals had not been heard, and by that time it was too late to avoid the accident. Under all the circ*mstances, we are satisfied that the accused was without fault; and that the accident must be attributed wholly to the reckless negligence of the deaf-mute, in walking on the track without taking the necessary precautions to avoid danger from a train approaching him from behind. ROBERTS vs. STATE OF LOUISIANA 396 So. 2d 566 [1981] [Mike Burson is totally blind. He has been operating a concession stand inside the Post Office Buildings since 1974. It is one of twenty-three vending stands operated by blind persons under a program implemented by the State of Louisiana. On September 1, 1977, at about 12:45 in the afternoon, operator Mike Burson left his concession stand to go to the men’s bathroom located at the Post Office Building. As he was walking down the hall, he bumped into the plaintiff who fell to the floor and injured his hip. Plaintiff was 75 years old, stood 5’6” and weighed approximately 100 pounds. Burson on the other hand, was 25 to 26 years old, stood approximately 6’ and weighed 165 pounds. Plaintiff contends that operator Burson traversed the area from his concession stand to the men’s bathroom in a negligent manner. Plaintiff focused on the operator’s failure to use his cane even though he had it with him in his concession stand.] “A careful review of the record in this instance reveals that Burson was acting as a reasonably prudent blind person would under these particular circ*mstances.

xxx

On the date of the incident in question, Mike Burson testified that he left his concession stand and was on his way to the bathroom when he bumped

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the plaintiff. He, without hesitancy, admitted that at the time he was not using his cane, explaining that he relies on his facial sense which he feels is an adequate technique for short trips inside the familiar building. Burson testified that he does use a cane to get to and from work.

xxx

Plaintiff makes much of Burson’s failure to use a cane when traversing the halls of the post office building. Yet, our review of the testimony received at the trial indicates that it is not uncommon for blind people to rely on other techniques when moving around in a familiar setting. For example George Marzloff, the director of the Division of Blind Services, testified that he can recommend to the blind operators that they should use a cane but he knows that when they are in a setting in which they are comfortable, he would say that nine out of ten will not use a cane and in his personal opinion, if the operator is in a relatively busy area, the cane can be more of a hazard than an asset.

xxx

Upon review of the record, we feel that plaintiff has failed to show that Burson was negligent. Burson testified that he was very familiar with his sorroundings, having worked there for three and a half years. He had special mobility training and his reports introduced into evidence indicate his good mobility skills. He explained his decision to rely on his facial sense instead of his cane for these short trips in a manner which convinces us that it was a reasoned decision. Not only was Burson’s explanation adequate, there was additional testimony from other persons indicating that such decision is not an unreasonable one. Also important is the total lack of evidence in the record showing that at the time of the incident, Burson engaged in any acts which may be characterized as negligence on his part. For example, there is nothing showing that Burson was walking too fast, not paying attention, et cetera. Under all of these circ*mstances, we conclude that Mike Burson was not negligent.’’

d.

Experts and Professionals.

An expert should exhibit the care and skill of one ordinarily skilled in the particular field that he is in. In fact, when a person holds himself out as being competent to do things requiring professional skills, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempted to do. (Culion Ice, Fish & Electric Co., Inc. vs. Philippine Motors Corporation, No. 32611, November 3, 1930, 55 Phil. 129). The Supreme Court explained in Far Eastern Shipping Company vs. Court of Appeals (297 SCRA 30, 64 [1998]) that an act may be negligent if it is done without the competence that a reasonable person in the position of the actor would recognize as necessary to

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prevent it from creating an unreasonable risk of harm to another. Those who undertake any work calling for special skills are required not only to exercise reasonable care in what they do but also possess a standard minimum of special knowledge and ability. Every man who offers his services to another, and is employed, assumes to exercise in the employment such skills he possesses, with a reasonable degree of diligence. In all these employment where peculiar skill is requisite, if one offers his services he is understood as holding himself out to the public as possessing the degree of skill commonly possessed by others in the same employment, and if his pretentions are unfounded, he commits a species of fraud on every man who employs him in reliance on his public profession. The above-cited Far Eastern Shipping Company case involved a compulsory pilot of a seagoing vessel. A pilot in maritime law is a person duly qualified to conduct a vessel into or out of ports, or in certain waters. It is more generally understood as a person who was taken on board at a particular place for the purpose of conducting a ship through a river, road or channel, or from a port. In some states and localities, it is quite common to provide for compulsory pilotage and to enact safety laws requiring vessels approaching their ports to take on board pilots duly licensed under local law. (supra, p. 60). Thus, upon assuming the office of a compulsory pilot, the latter is held to the universally accepted high standards of care and diligence required of a pilot, whereby he assumes to have skill and knowledge in respect to navigation in the particular waters over which his license extends superior to and more to be trusted than that of the master. A pilot should have a thorough knowledge of general and local regulations and physical conditions affecting the vessel in his charge and the waters for which he is licensed, such as a particular harbor or river. He is not held to the highest possible degree of skill and care demanded by the circ*mstances, but must have and exercise the ordinary skill and care demanded by the circ*mstances, and usually shown by an expert in his profession. Under extraordinary circ*mstances, a pilot must exercise extraordinary care. (p. 61). The rule regarding experts is demonstrated in United States vs. Pineda (37 Phil. 456, 462-464), involving pharmacists. The Supreme Court explained that the profession of pharmacy is one demanding care and skill. It requires the highest degree of prudence, thoughtfulness, and vigilance and the most exact and reliable safeguards consistent with the reasonable conduct of business, in order that human life may not constantly be exposed to the danger flowing from the substitution of deadly poison for harmless medicine. “In other words,

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the care required must be commensurate with the danger involved and skill employed must correspond with the superior knowledge of the business which the law demands.” The rule regarding experts is applicable not only to professionals, like doctors, pilots and others, who have undergone formal education. In Sofia Fernando, et al. vs. Court of Appeals (208 SCRA 714 [1992]), an invitation to bid was issued to different persons for the re-emptying of the septic tank in a public market in Davao City. Later, a non-winning bidder named Mr. Bertulano, with four other companions were found dead inside the septic tank. It appeared that the five victims entered the septic tank and proceeded to re-empty the same without the consent of proper authorities. When the heirs of the victims sued for damages, they were denied recovery by the Supreme Court explaining, among others that the accident in the case occurred because the victims on their own and without authority from proper authorities of the city opened the septic tank. The Court observed that: “Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident. In Cullion Ice, Fish and Elect. Co. vs. Philippine Motors Corporation (55 Phil. 129, 133), We held that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do.”

Care required must also be commensurate with the danger that the activity entails. Thus, where the performance of work involves danger to the public unless performed with skill, the ordinary prudent man is deemed to have such required skill. (57 Am. Jur. 2d 420). For instance, a person hoisting a heavy safe in a public place where people are constantly passing is bound to use such care as the nature of the employment and the situation and circ*mstances require of a prudent person experienced and skilled in such work. (ibid.). Similarly, a person engaged in the business of selling explosives or even mere firecrackers should exercise due care commensurate with the demands of such dangerous activity. CASE:

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CULION ICE, FISH, AND ELECTRIC CO. vs. PHIL. MOTORS CORPORATION 55 Phil. 129 [1930] This action was instituted in the Court of First Instance of Manila by Culion Ice, Fish and Electric Co., Inc., for the purpose of recovering from the Philippine Motors Corporation the sum of P11,350.00, with interest and costs. Upon hearing the case, the trial court gave judgment in favor of the plaintiff to recover of the defendant the sum of P9,850.00, with interest at 6 per centum per annum from March 24, 1927, the date of the filing of the complaint, until satisfaction of the judgment, with costs. From this judgment the defendant appealed. The plaintiff and defendant are domestic corporations; and at the time of the incident with which we are here concerned; H.D. Cranston was the representative of the plaintiff in the City of Manila. At the same time the plaintiff was the registered owner of the motor schooner Gwendoline, which was used in the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the engine on Gwendoline changed from a gasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the boat. He therefore made known his desire to McLeod & Co., a firm dealing in tractors, and was told by McKellar, of said company, that he might make inquiries of the Philippine Motors Corporation, which had its office on Ongpin Street, in the City of Manila. Cranston accordingly repaired to the office of the Philippine Motors Corporation and had a conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment should be made upon completion of the work. The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its charter, it had authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy and sell the same and the equipment thereof. Quest, as general manager, had full charge of the corporation in all its branches. As a result of the aforesaid interview, Quest, in company with Cranston, visited the Gwendoline while it lay at anchor in the Pasig river, and the work of effecting the change in the engine was begun and conducted under the supervision of Quest, chiefly by a mechanic whom Quest took with him to the boat. In this work, Quest had the assistance of the members of the crew of the Gwendoline, who had been directed by Cranston to place themselves under Quest’s directions. Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end in view was to install a new carburetor, and a Zenith carburetor was chosen as the one most adapted to the purpose. After this appliance had been installed, the engine was tried with gasoline as a fuel, supplied from the tank already in

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use. The result of this experiment was satisfactory. The next problem was to introduce into the carburetor the baser fuel, consisting of a low grade of oil mixed with distillate. For this purpose, a temporary tank to contain the mixture was placed on deck above and at a short distance from the compartment covering the engine. This tank was connected with the carburetor by a piece of tubing, which was apparently not well fitted at the point where it was connected with the tank. Owing to this fact, the fuel mixture leaked from the tank and dripped down into the engine compartment. The new fuel line and that already in use between the gasoline tank and the carburetor were so fixed that it was possible to change from the gasoline fuel to the mixed fuel. The purpose of this arrangement was to enable the operator to start the engine on gasoline and then, after the engine had been operating for a few moments, to switch to the new fuel supply. In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part of the carburetor to the floor. This fact was called to Quest’s attention, but he appeared to think lightly of the matter and said that, when the engine had gotten to running well, the flooding would disappear. After preliminary experiments and adjustments had been made, the boat was taken out into the bay for a trial run at about 5 p.m., or a little later, on the evening of January 30, 1925. The first part of the course was covered without any untoward development, other than the fact that the engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of the trial, Quest remained outside of the engine compartment and occupied himself with making experiments in the matter of mixing the crude oil with distillate, with a view of ascertaining what proportion of the two elements would give best results in the engine. As the boat was coming in from this run, at about 7:30 p.m., and when passing near Cavite, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done, the mechanic or engineer, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from the wreck, when sold, brought only the sum of P150.00. The value of the boat, before the accident occurred, as the court found, was P10,000.00. A study of the testimony leads us to the conclusion that the loss of this boat was chargeable to the negligence and lack of skill of Quest. The temporary tank in which the mixture was prepared was apparently at too great an elevation from the carburetor, with the result that when the fuel line opened, the hydrostatic pressure in the carburetor was greater that the delicate parts

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of the carburetor could sustain. This was no doubt the cause of the flooding of the carburetor; and the result was that, when the back fire occurred, the external parts of the carburetor, already saturated with gasoline, burst into flames, whence the fire was quickly communicated to the highly inflammable material nearby. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along the pipe line and the flooding of the carburetor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed. In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do. The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. For this reason, possibly, the dripping of the mixture from the tank on deck and the flooding of the carburetor did not convey to his mind an adequate impression of the danger of fire. But a person skilled in that particular sort of work would, we think, have been sufficiently warned from those circ*mstances to cause him to take greater and adequate precautions against the danger. In other words Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats. There was here, in our opinion, on the part of Quest, a blameworthy antecedent inadvertence to possible harm, and this constitutes negligence. The burning of the Gwendoline may be said to have resulted from accident, but this accident was in no sense an unavoidable accident. It would not have occurred but for Quest’s carelessness or lack of skill. The test of liability is not whether the fire was accidental in a sense, but whether Quest was free from blame. We therefore see no escape from the conclusion that this accident is chargeable to lack of skill or negligence in effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire is not so inscrutable as to enable us to say that it was casus fortuitus. The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence the burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant corporation had thereby become bailee of its owner’s yard, or a mechanic who repairs a coach without taking it to his shop, are

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not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in the chartted bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation. These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable on the supposition that the burden of proof has not been sustained by it in disproving the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear preponderance that the accident to the Gwendoline and the damages resulting therefrom are chargeable to the negligence or lack of skill of Quest. This action was instituted about two years after the accident in question had occurred, and after Quest had ceased to be the manager of the defendant corporation and had gone back to the United States. Upon these facts, the defendant bases the contention that the action should be considered stale. It is sufficient reply to say that the action was brought within the period limited by the statute of limitations and the situation is not one where the defense of laches can be properly invoked.

e.

Nature of Activity.

In some instances, persons impose upon themselves certain obligations and non-compliance therewith will be considered negligence. For example, a railroad company may impose upon itself the obligation to operate a gate at a railroad crossing even at night and close the gate every time a train passes in order to avoid causing injury. In such a case, if a gate is open, the same shall constitute an invitation to the public to pass without fear of danger and failure to operate the gate conveniently constitutes negligence. (Consolacion Junio vs. Manila Railroad Company, 58 Phil. 176 [1933]). There are activities, however, which by nature impose duties to exercise a higher degree of diligence. Banks, for instance, “handle daily transactions involving millions of pesos. By the very nature of their work, the degree of responsibility, care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. For obvious reasons, the banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees.” (Bank of Philippine Islands vs. Court of Appeals, 216 SCRA 51, 71 [1992]). Common carriers are also required to exercise utmost diligence in the performance of their functions. Article 1733 imposes the duty on common carriers to exercise extraordinary diligence in the vigilance over their passengers and transported goods.

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In Smith Bell Dodwell Shipping Agency Corporation vs. Catalino Borja (G.R. No. 143008, June 10, 2002), the Supreme Court took into consideration the fact that the carrier was carrying highly inflammable materials. The petitioner’s vessel was carrying dangerous inflammable chemicals but its officers and crew failed to take the necessary precaution to prevent any accident. An explosion occurred setting the vessel afire. The private respondent, who was then on board while performing his functions as customs inspector, was forced to jump out of the ship resulting in his permanent disability.

f. Intoxication.

Mere intoxication is not negligence, nor does the mere fact of intoxication establish want of ordinary care. It is but a circ*mstance to be considered with the other evidence tending to prove negligence. It is a general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than a sober one. If one’s conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. (Wright vs. Manila Electric Co., 28 Phil. 122 [1914]). In other words, intoxication is of little consequence in negligence cases if it was not shown that such drunkenness contributed to the accident or that the accident would have been avoided had he been sober. (U.S. vs. Crame, 30 Phil. 2 [1915]). For example, the plaintiff cannot be considered negligent based on the sole fact that he was intoxicated when he fell into an uncovered hole in the sidewalk of a public street. “A drunken man is as much entitled to a safe street, as a sober one, and much more in need of it.” (Robinson vs. Pioche, Bayerque & Co., 5 Cal. 460 [1855], cited in Richard A. Epstein, Cases and Materials on Torts, 1995 Ed., p. 187). However, as pointed out earlier, intoxication may be one of the circ*mstances to be considered to prove negligence. For instance, intoxication may be considered to prove negligence in driving a motor vehicle. As explained by the Supreme Court, driving exacts a more than usual toll on the senses. While driving, the body releases catecholamines in response to ‘alerting’ or threatening conditions (called ‘fight’ or ‘flight’ conditions by physiologists) rendering the individual, through his reflexes, senses and other alerting mechanisms responsive to these conditions. Alcohol dulls these normal bodily responses. (Valenzuela vs. Court of Appeals, supra, p. 77, citing Best and Taylor, Physiological Basis of Medical Practice, 81 [1993]). However, differ-

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ent persons have different reactions to liquor. A person may take as much as several bottles of beer or several glasses of hard liquor and still remain sober and unaffected by the alcoholic drink. (Nitura vs. Employees’ Compensation Commission, 201 SCRA 278, 282-283 [1991]). Moreover, proof of intoxication may in proper cases establish a presumption of negligence. Driving under the influence of alcohol is a violation of traffic regulations. Under Article 2185 of the Civil Code, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation. CASE: E. M. WRIGHT vs. MANILA ELECTRIC R. R. & LIGHT CO. G.R. No. 7760. October 1, 1914 MORELAND, J.: This is an action brought to recover damages for injuries sustained in an accident which occurred in Caloocan on the night of August 8, 1909. The defendant is a corporation engaged in operating an electric street railway in the city of Manila and its suburbs, including the municipality of Caloocan. The plaintiff’s residence in Caloocan fronts on the street along which defendant’s tracks run, so that to enter his premises from the street, plaintiff is obliged to cross defendant’s tracks. On the night mentioned, plaintiff drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the vehicle to strike one of the rails with great force. The fall of the horse and the collision of the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and caused the injuries complained of. It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the rails were above-ground, but that the ties upon which the rails rested projected from one-third to one-half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more above the level of the street. It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident that he was unable to take care of himself properly and that such intoxication was the primary cause of the accident. The trial court held that both parties were negligent, but that the plaintiff’s negligence was not as great as defendant’s and under the authority of the case of Rakes vs. A. G. & P. CO. (7 Phil. Rep., 359) apportioned the

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damages and awarded plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus:

“Accepting the findings of the trial court that both plaintiff and defendant were guilty of negligence, the only question to be considered is whether the negligence of plaintiff contributed to the ‘principal occurrence’ or ‘only to his own injury.’ If the former, he cannot recover; if the latter, the trial court was correct in apportioning the damages.” The question as stated by plaintiff is as follows: “The main question at issue is whether or not the plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary cause of the accident then, of course, he cannot recover; if his negligence had nothing to do with the accident but contributed to his injury, then the court was right in apportioning the damages, but if there was no negligence on the part of the plaintiff, then he should be awarded damages adequate to the injury sustained.”

In support of the defendant’s contention counsel says:

“Defendant’s negligence was its failure properly to maintain the track; plaintiff’s negligence was his intoxication; the ‘principal occurrence’ was plaintiff’s fall from his calesa. It seems clear that plaintiff’s intoxication contributed to the fall; if he had been sober, it can hardly be doubted that he would have crossed the track safely, as he had done a hundred times before.” While both parties appealed from the decision, the defendant on the ground that it was not liable and the plaintiff on the ground that the damages were insufficient according to the evidence, and while the plaintiff made a motion for a new trial upon the statutory grounds and took proper exception to the denial thereof, thus conferring upon this court jurisdiction to determine the questions of fact, nevertheless, not all of the testimony taken on the trial, so far as can be gathered from the record, has been brought to this court. There seem to have been two hearings, one on the 31st of August and the other on the 28th of September. The evidence taken on the first hearing is here; that taken on the second is not. Not all the evidence taken on the hearings being before the court, we must refuse, under our rules, to consider even that evidence which is here; and, in the decision of this case, we are, therefore, relegated to the facts stated in the opinion of the court and the pleadings filed. A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the accident which is the basis of this action. Mere intoxication is not negligence, nor does the mere fact of intoxication establish a want of ordinary care. It is but a circ*mstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required to be exercised by an intoxicated man for his own protection than by a sober one. If one’s conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. (Ward vs.

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Chicago etc., R. R. Co., 85 Wis., 601; H. & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs. Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. R. Co., 115 Mass., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151; Chicago & N. W. R. R. Co. vs. Drake, 33 Ill. App., 114.) If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its opinion upon which may be predicated the finding that the plaintiff did not use ordinary care and prudence and that the intoxication contributed to the injury complained of? After showing clearly and forcibly the negligence of the defendant in leaving its tracks in the condition in which they were on the night of the injury, the court has the following to say and it is all that can be found in its opinion, with reference to the negligence of the plaintiff: “With respect to the condition in which Mr. Wright was on returning to his house on the night in question, the testimony of Doctor Kneedler who was the physician who attended him all hour after the accident, demonstrates that he was intoxicated. “If the defendant or its employees were negligent by reason of having left the rails and a part of the ties uncovered in a street where there is a large amount of travel, the plaintiff was no less negligent, he not having abstained from his custom of taking more wine than he could carry without disturbing his judgment and his self-control, he knowing that he had to drive a horse and wagon and to cross railroad tracks which were to a certain extent dangerous by reason of the rails being elevated above the level of the street. “If the plaintiff had been prudent on the night in question and had not attempted to drive his conveyance while in a drunken condition, he would certainly have avoided the damages which he received, although the company, on its part, was negligent in maintaining its tracks in a bad condition for travel. “Both parties, therefore, were negligent and both contributed to the damages resulting to the plaintiff, although the plaintiff, in the Judgment of the court, contributed in greater proportion to the damages than did the defendant.” As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as found. It is impossible to say that a sober man would not have fallen from the vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to throw a person from the vehicle no matter what his condition; and to conclude that, under such circ*mstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the realm of speculation and guesswork. It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question presented by the appellant company with refer-

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ence to the applicability of the case of Rakes vs. A. G. & P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdict than the one found.

g. Insanity. Under the Revised Penal Code, an insane person is exempt from criminal liability. However, by express provision of law, there may be civil liability even when the perpetrator is held to be exempt from criminal liability. “Such is the case of a lunatic or demented person who, in spite of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts, even though they be performed unwittingly. Law and society are under obligation to protect him and, when so declared liable with his property for reparation and indemnification, he is still entitled to reservation of what is necessary for his decent maintenance, but this protection does not exclude liability for damages caused to those who may have the misfortune to suffer the consequences of his act.” (U.S. vs. Bagay, 20 Phil. 142, 146). The same rule is applicable under the Civil Code. The insanity of a person does not excuse him or his guardian from liability based on quasi-delict. (Articles 2180 and 2182, Civil Code). This means that the act or omission of the person suffering from mental defect will be judged using the standard test of a reasonable man. The bases for holding a permanently insane person liable for his tort are as follows: (a) Where one of two innocent persons must suffer a loss it should be borne by the one who occasioned it; (b) to induce those interested in the estate of the insane person (if he has one) to restrain and control him; and (c) the fear that an insanity defense would lead to false claims of insanity to avoid liability. (Breunig vs. American Family Insurance Co., 173 N.W. 2d 619 [1970]). It should be noted, however, that there are rare cases in the United States when a person may escape liability by invoking his mental disorder. Thus, a driver of a motor vehicle is not liable if he was suddenly overcome without forewarning by a mental disorder or disability which incapacitated him from conforming his conduct to the standards of a reasonable man under like circ*mstances. It was explained that it is unjust to hold a man responsible for his conduct which he is incapable of avoiding and which incapability was unknown to him prior to the accident. (Breunig vs. American Family Insurance Co., ibid.).

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h. Women. There is no question that when it comes to physical features, there is a distinction between man and woman. A man is generally physically stronger than a woman and the same should be taken into consideration in determining if the defendant, who is a woman, was negligent. The Supreme Court adopted the following rule in Jose Cangco vs. Manila Railroad Co. [G.R. No. 12191, October 14, 1918]: “We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson’s work on Negligence (vol. 3, sec. 3010) as follows: “The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the passenger acted under the circ*mstances disclosed by the evidence. This care has been defined to be, not the care which may or should be used by the prudent man generally, but the care which a man of ordinary prudence would use under similar circ*mstances, to avoid injury.” (Thompson, Commentaries on Negligence, vol. 3, sec. 3010). Or, if we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. 809), we may say that the test is this: Was there anything in the circ*mstances surrounding the plaintiff at the time he alighted from the train which would have admonished a person of average prudence that to get off the train under the conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so to desist was contributory negligence. As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that the plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the condition of the platform and while the train was yet slowly moving. In considering the situation thus presented, it should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its duty as a public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of some circ*mstance to warn him to the contrary, that the platform was clear. The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the defendant in the performance of a duty owing by it to

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the plaintiff; for if it were by any possibility conceded that it had a right to pile these sacks in the path of alighting passengers, placing of them in that position gave rise to the duty to light the premises adequately so that their presence would be revealed. As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following circ*mstances are to be noted: The company’s platform was constructed upon a level higher than that of the roadbed and the surrounding ground. The distance from the steps of the car to the spot where the alighting passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping off. The nature of the platform, constructed as it was of cement material, also assured to the passenger a stable and even surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky for him to get off while the train was yet moving as the same act would have been in an aged or feeble person. In determining the question of contributory negligence in performing such act — that is to say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the passenger are circ*mstances necessarily affecting the safety of the passenger, and should be considered. Women, it has been observed, as a general rule, are less capable than men of alighting with safety under such conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff, as it was his daily custom to get on and off the train at this station. There could, therefore, be no uncertainty in his mind with regard either to the length of the step which he was required to take or the character of the platform where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence and that therefore he was not guilty of contributory negligence.’’ (emphasis supplied)

The problem, however, arises if the question involves attitude. The question may be posed: Can we apply the same objective standard to women that we are applying to a man or are we to assume that there is a fundamental difference between the reaction or attitude of women compared to men given the same set of facts? Although there is no unequivocal statement of the rule, Valenzuela vs. Court of Appeals cited earlier, appears to require a different standard of care for women under the circ*mstances indicated therein. The Supreme Court seemed to say that the conduct to be expected of women is different from that of a man. Thus, the Court explained:

“While the emergency rule applies to those cases in which

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reflective thought, or the opportunity to adequately weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated not exclusively by the suddenness of the event which absolutely negates throughful care, but by the over-all nature of the circ*mstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faulted for stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of Aurora Boulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists in danger, she did what was best under the situation. As narrated by respondent court: “She stopped at a lighted place where there are people, to verify whether she had a flat tire and to solicit help if needed. Having been told by the people present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk, about 1 1/2 feet away, behind a Toyota Corona Car.” In fact, respondent court noted, Pfc. Felix Ramos, the investigator on the scene of the accident confirmed that Valenzuela’s car was parked very close to the sidewalk. The sketch which he prepared after the incident showed Valenzuela’s car partly straddling the sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact was itself corroborated by the testimony of witness Rodriguez.”

Is the Court saying that a man driving a vehicle, suddenly crippled by a flat tire on a rainy night, should be faulted for stopping at a point which is both convenient for him to do so and which is not a hazard to other motorists? Is he expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where he would likely find no one to help him? Would it be not hazardous for him to stop and assess the emergency because the hobbling vehicle would be both a threat to his safety and to other motorists? It is believed that it can also be reasonably argued that the same conclusion that was reached by the Court can be reached if it was a man who was in the position of the actor in Valenzuela. A man is not necessarily as brave as the Court may presume him to be. On the other hand, many women may find the conclusion of the Court as too patronizing. They may find it insulting to be treated in such a stereotypical manner.

Dean Guido Calabresi believes that there should be uniform

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standard of care for men and women. He explained in one of his lectures: “All of this argues that before we move to the standard of a reasonably prudent person, linguistically, we must make sure that what we have put into that standard is not simply a carryover of male attributes. We must be careful lest we simply apply sexist precedents and cases. We must not just take the old lawn-mowing man on the Clapham Omnibus, call him a person, and think we have done the job. We must work to define a person, and think we have done the job. We must work to define a person who is reasonably prudent, and reasonable behavior, may be male in some regards, but will in other regards be female. We must do this not because tort law directly shapes much of the behavior or many of the attitudes that are important to society. We must do it, rather, because what law does in general is crucial to shaping fundamental societal attitudes and behavior. This is not to say, once the society, the legal system, works its way toward this one, non-sexist standard, and that the standard should not apply equally across the board, to men and women both. It is not to say that reasonable prudence should be different for men and women. That is a different issue altogether and I am more than inclined to accept the notion that the standard should be the same for men and women. We should, I think, either men’s and women’s rooms or ladies’ and gentlemen’s rooms. (Though when we come to deal with other cultural and religious attitudes we may well decide that at times a single, unitary standard is less desirable than more diverse one applying to different groups.) It is just that in choosing such a single standard we ought not simply and mindlessly choose the previous male one (or for that matter, the previous female one), but work toward a new standard that might include the better parts of both past stereotypes.” (Calabresi, Ideals, Beliefs, Attitudes, and the Law, First Ed., 1985, pp. 31-32).

5.

STANDARD vs. SPECIFIC RULES

In legal philosophy, there is an old debate on the choice of correct legal norm — a debate on the choice between rules and standards. Rules are legal norms that are formal and mechanical. They are triggered by a few easily identified factual matters and are opaque in application to the values that they are designed to serve (example, drive at not more than 60 k.p.h.). Standards, on the other hand, are flexible, context-sensitive legal norms that require evaluative judgments in their application (example, drive safely). However, there are legal norms that are hybrid, in that they are both rule-like and standard-like. (Larry Alexander and Ken Kress, Against Legal

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Principles, reproduced in Law and Interpretation, Essays in Legal Philosophy, 1995 Ed., Ed. By Andrei Marmor, p. 280). The discussions in the preceding sections make it clear that standards are the legal norms that are being followed in deciding negligence cases. Courts apply a standard in the light of the circ*mstances obtaining in the particular case they are deciding. The courts do not prescribe specific rules of conduct to be followed by all persons. “The standard of reasonable care is set by law but its application in a particular case is a question of fact in the sense that propositions of good sense which are applied by one judge in one case should not be regarded as propositions of law. If that were the case, the system would collapse under the weight of accumulated precedent.” (W.V.H. Rogers, Winfield & Jolowicz on Torts, 1998 15th Ed., p. 179). What results is that the courts in each case must balance all conflicting interests and consider all the circ*mstances. The dichotomy of rules and standards was highlighted in Corliss vs. The Manila Railroad Company (supra, at page 37). In the said case, the Supreme Court pointed out the opinion of Justice Holmes in one railroad case that seemed to indicate that setting the standard means specifying what to do in a given situation. The opinion had been interpreted to suggest that a driver who is traversing a railroad crossing must, at all times, stop and see if there is an oncoming locomotive. What was suggested then was a mechanical and inflexible rule. It should be pointed out in this connection that Justice Holmes predicted in his work, The Common Law, that the accumulated findings of juries should eventually crystallize into increasingly precise legal rules. Justice Cardozo, however expressed the view that specific rules of conduct cannot be imposed. The Supreme Court explained in Corliss that: “4. The fourth assigned error is deserving of a more extended treatment. Plaintiff-appellant apparently had in mind this portion of the opinion of the lower court: “The weight of authorities is to the effect that a railroad track is in itself a warning or a signal of danger to those who go upon it, and that those who, for reasons of their own, ignore such warning, do so at their own risk and responsibility. Corliss, Jr., who undoubtedly had crossed the checkpoint frequently, if not daily, must have known that locomotive engines and trains usually pass at that particular crossing where the accident had taken place.”

Her assignment of error, however, would single out not the

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above excerpt from the decision appealed from but what to her is the apparent reliance of the lower court on Mestres vs. Manila Electric Railroad & Light Co. and United States vs. Manabat & Pasibi. In the Manabat case, the doctrine announced by this Court follows: “A person in control of an automobile who crosses a railroad, even at a regular road crossing, and who does not exercise that precaution and that control over it as to be able to stop the same almost immediately upon the appearance of a train, is guilty of criminal negligence, providing a collision occurs and injury results. Considering the purposes and the general methods adopted for the management of railroads and railroad trains, we think it is incumbent upon one approaching a railroad crossing to use all of his faculties of seeing and hearing. He should approach a railroad crossing cautiously and carefully. He should look and listen and do everything that a reasonably prudent man would do before he attempts to cross the track.” The Mestres doctrine in a suit arising from a collision between an automobile and a street car is substantially similar. Thus: “It may be said, however, that, where a person is nearing a street crossing toward which a car is approaching, the duty is on the party to stop and avoid a collision who can most readily adjust himself to the exigencies of the case, and where such person can do so more readily, the motorman has a right to presume that such duty will be performed.” It is true, as plaintiff-appellant would now allege, that there has been a drift away from the apparent rigid and inflexible doctrine thus set forth in the two above cases as evidenced by Lilius vs. Manila Railroad Co., the controlling facts of which, however, are easily distinguishable from what had been correctly ascertained in the present case. Such a deviation from the earlier principle announced is not only true of this jurisdiction but also of the Untied States. This is made clear by Prosser. Speaking of a 1927 decision by Justice Holmes, he had the following to say: “Especially noteworthy in this respect is the attempt of Mr. Justice Holmes, in Baltimore & Ohio Railway vs. Goodman, to ‘lay down a standard once for all,’ which would require an automobile driver approaching a railroad crossing with an obstructed view to stop, look and listen, and if he cannot be sure otherwise that no train is coming, to get out of the car. The basic idea behind this is sound enough; it is by no means proper care to cross a railroad track without taking reasonable precautions against a train, and normally such precautions will require looking, hearing, and a stop, or at least slow speed, where the view is obstructed.” Then, barely seven years later, in 1934, came Pokora vs. Wabash Railway, where, according to Prosser, it being shown that “the only effective stop must be made upon the railway

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tracks themselves, in a position of obvious danger, the court disregarded any such uniform rule, rejecting the ‘get out of the car’ requirement as ‘an uncommon precaution, likely to be futile and sometimes even dangerous,’ and saying that the driver need not always stop. ‘Illustrations such as these,’ said Mr. Justice Cardozo, ‘bear witness to the need for caution in framing standards of behavior that amount to rules of law . . . Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal.” The Supreme Court explained that “what Justice Cardozo announced would merely emphasize what was set forth earlier that each and every case on questions of negligence is to be decided in accordance with the peculiar circ*mstances that present themselves. There can be no hard and fast rule. There must be that observance of the degree of care, precaution, and vigilance which the situation demands.”

CASES:

BALTIMORE & OHIO R.R. vs. GOODMAN 275 U.S. 66, 48 SUP. CT. 24

MR. JUSTICE HOLMES delivered the opinion of the Court.

This is a suite brought by the widow and administratrix of Nathan Goodman against the petitioner for causing his death by running him down at a grade crossing. The defense is that Goodman’s own negligence caused the death. At the trial, the defendant asked the Court to direct a verdict for it, but the request, and others looking to the same direction, were refused, and the plaintiff got a verdict and a judgment which was affirmed by the Circuit Court of Appeals. (10 F.[2d] 58). Goodman was driving an automobile truck in an easterly direction and was killed by a train running southwesterly across the road at a rate of not less than sixty miles an hour. The line was straight, but it said by the respondent that Goodman “had no practical view” beyond a section house two hundred and forty three feet north of the crossing until he was about twenty feet from the first rail, or, as the respondent argues, twelve feet from danger, and then the engine was still obscured by the section house. He had been driving at the rate of ten or twelve miles an hour, but had cut down his rate to five or six miles at about forty feet from the crossing. It is thought that there was an emergency in which, so far as appears, Goodman did all that he could. We do not go into further details as to Goodman’s precise situation, beyond mentioning that it was daylight and that he was familiar with the crossing, for it appears to us plain that nothing is suggested by the evidence to relieve Goodman from responsibility for his own death. When a man goes

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upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train, not the train to stop for him. In such circ*mstances, it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near, he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk. If at the last moment Goodman found himself in an emergency it was his own fault that he did not reduce his speed earlier or come to a stop. It is true as said in Flannelly vs. Delaware & Hudson Co., 225 U.S. 597, 603, that the question of due care very generally is left to the jury. But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once and for all by the Courts. (See Southern Pacific Co. vs. Berkshire, 254 U.S. 415, 417, 419). POKORA vs. WABASH RY. CO. 292 U.S. 98, 54 SUP. CT. 580 [1934]

MR. JUSTICE CARDOZO delivered the opinion of the Court.

John Pokora, driving his truck across a railway grade crossing in the city of Springfield, Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed [66 F.2d 166], resting its judgment on the opinion of this court in B. & O.R. Co. vs. Goodman, 275 U.S. 66, 48 S. Ct. 24, 25, 72 L. Ed. 167, 56 A.L.R. 645. A writ of certiorari brings the case here. Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a crossing at Edwards street running east and west. Two ice depots are on opposite corners of Tenth and Edwards streets; one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In his crossing of the railway, the accident occurred. The defendant has four tracks on Tenth street; a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour.

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The argument is made, however, that our decision in B. & O.R. Co. vs. Goodman, supra, is a barrier in the plaintiff’s path, irrespective of the conclusion that might commend itself if the question were at large. There is no doubt that the opinion in that case is correct in its result. Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a clear space of eighteen feet within which the train was plainly visible. With the opportunity, he fell short of the legal standard of duty established for a traveler when he failed to look and see. This was decisive of the case. But the court did not stop there. It added a remark, unnecessary upon the facts before it, which has been a fertile source of controversy. “In such circ*mstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.” There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments. Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circ*mstances, and hence generally, even if not invariably, upon the judgment of the jury. The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger. Not even in B. & O. R. Co. vs. Goodman, supra, which goes farther than the earlier cases, is there support for such a rule. To the contrary, the opinion makes it clear that the duty is conditioned upon the presence of impediments whereby sight and hearing become inadequate for the traveler’s protection. Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here, the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box cars, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could be made safely after the point of clearance had been reached. (See e.g., Dobson v. St. Louis-S.F. Ry. Co., supra). For reasons already stated, the testimony permits the inference that the truck was in the zone of danger by the time the field of vision was enlarged. No stop would then have helped the plaintiff if he remained seated on his truck, or so the triers of the facts might find. His case was for the jury, unless as a matter of law he was subject to a duty to get out of the vehicle before it crossed the switch, walk forward to the front, and then, afoot, survey the scene. We must say whether his failure to do this was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds.

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Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. Often the added safeguard will be dubious though the track happens to be straight, as it seems that this one was, at all events as far as the station, above five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circ*mstances and can be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat. The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. If he was to leave his vehicle near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his observations worthless. One must remember that while the traveler turns his eyes in one direction, a train or a loose engine may be approaching from the other. Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mess where the ordinary safeguards fail him is for the judgment of a jury. . . . The opinion in Goodman’s Case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the states. We limit it accordingly. The judgment should be reversed, and the cause remanded for further proceedings in accordance with this opinion.

It is so ordered.

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PRECIOLITA V. CORLISS vs. THE MANILA RAILROAD CO. 27 SCRA 674 [1969] FERNANDO, J.: Youth, the threshold of life, is invariably accompanied by that euphoric sense of well-being, and with reason. The future, bright with promise, looms ahead. One’s powers are still to be tested, but one feels ready for whatever challenge may come his way. There is that heady atmosphere of self-confidence, at times carried to excess. The temptation to take risks is there, ever so often, difficult, if not impossible, to resist. There could be then a lessening of prudence and foresight, qualities usually associated with age. For death seems so remote and contingent an event. Such is not always the case though, and a slip may be attended with consequences at times unfortunate, even fatal. Some such thought apparently was in the mind of the lower court when it dismissed the complaint for recovery of damages filed by plaintiffappellant, Preciolita V. Corliss, whose husband, the late Ralph W. Corliss, was, at the tender age of twenty-one, the victim of a grim tragedy, when the jeep he was driving collided with a locomotive of defendant-appellee Manila Railroad Company, close to midnight on the evening of February 21, 1957, at the railroad crossing in Balibago, Angeles, Pampanga, in front of the Clark Air Force Base. In the decision appealed from, the lower court, after summarizing the evidence, concluded that the deceased “in his eagerness to beat, so to speak, the oncoming locomotive, took the risk and attempted to reach the other side, but unfortunately he became the victim of his own miscalculation.” The negligence imputed to defendant-appellee was thus ruled out by the lower court, satisfactory proof to that effect, in its opinion, being lacking. Hence, this appeal direct to us the amount sought in the concept of damages reaching the sum of P282,065.40. An examination of the evidence of record fails to yield a basis for a reversal of the decision appealed from. We affirm. According to the decision appealed from, there is no dispute as to the following: “In December 1956, plaintiff, 19 years of age, married Ralph W. Corliss, Jr., 21 years of age, that Corliss, Jr. was an air police of the Clark Air Force Base; that at the time of the accident, he was driving the fatal jeep; that he was then returning in said jeep, together with a P.C. soldier, to the Base; and that Corliss, Jr. died of serious burns at the Base Hospital the next day, while the soldier sustained serious physical injuries and burns.” Then came a summary of the testimony of two of the witnesses for plaintiff-appellant. Thus: “Ronald J. Ennis, a witness of the plaintiff, substantially declared in his deposition, that at the time of the accident, he was awaiting transportation at the entrance of Clark Field, which was about 40 to 50 yards away from the tracks and that while there he saw the jeep coming towards the Base. He said that said jeep slowed down before reaching the crossing, that it made a brief stop but that it did not stop — dead stop.

NEGLIGENCE

Elaborating, he declared that while it was slowing down, Corliss, Jr. shifted into first gear and that was what he meant by a brief stop. He also testified that he could see the train coming from the direction of San Fernando and that he heard a warning but that it was not sufficient enough to avoid the accident.” Also: “Virgilio de la Paz, another witness of the plaintiff, testified that on the night of February 21, 1957, he was at the Balibago checkpoint and saw the train coming from Angeles and a jeep going towards the direction of Clark Field. He stated that he heard the whistle of the locomotive and saw the collision. The jeep, which caught fire, was pushed forward. He helped the P.C. soldier. He stated that he saw the jeep running fast and heard the tooting of the horn. It did not stop at the railroad crossing, according to him.” After which reference was made to the testimony of the main witness for defendant-appellee, Teodorico Capili, “who was at the engine at the time of the mishap,” and who “testified that before the locomotive, which had been previously inspected and found to be in good condition, approached the crossing, that is, about 300 meters away, he blew the siren and repeated it in compliance with the regulations until he saw the jeep suddenly spurt, and that although the locomotive was running between 20 and 25 kilometers an hour and although he had applied the brakes, the jeep was caught in the middle of the tracks.” [The Supreme Court ruled that the above finding as to the non-existence of negligence attributable to defendant-appellee Manila Railroad Company is binding following the rule that findings of fact of the trial court are binding on the appellate court.] xxx Nor is the result different even if no such presumption were indulged in and the matter examined as if we were exercising original and not appellate jurisdiction. The sad and deplorable situation in which plaintiff-appellant now finds herself, to the contrary notwithstanding, we find no reason for reversing the judgment of the lower court. This action is predicated on negligence, the Civil Code making clear that whoever by act or omission causes damage to another, there being negligence, is under obligation to pay for the damage done. Unless it could be satisfactorily shown, therefore, that defendant-appellee was guilty of negligence then it could not be held liable. The crucial question, therefore, is the existence of negligence. The above Civil Code provision, which is reiteration of that found in the Civil Code of Spain, formerly applicable in this jurisdiction, had been interpreted in earlier decisions. Thus, in Smith vs. Cadwallader Gibson Lumber Co., Manresa was cited to the following effect: “Among the questions most frequently raised and upon which the majority of cases have been decided with respect to the application of this liability, are those referring to the determination of the damage or prejudice, and to the fault or negligence of the person responsible therefor. These are the two indispensable factors in

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the obligations under discussion, for without damage or prejudice there can be no liability, and although this element is present no indemnity can be awarded unless arising from some person’s fault or negligence.’’ Negligence was defined by us in two 1912 decisions, United States vs. Juanillo and United States v. Barias Cooley’s formulation was quoted with approval in both the Juanillo and Barias decisions. Thus: “Judge Cooley, in his work on Torts (3d ed.), Sec. 1324, defines negligence to be: ‘The failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circ*mstances justly demand, whereby such other person suffers injury.’” There was likewise a reliance on Ahern vs. Oregon Telephone Co. Thus: “Negligence is want of the care required by the circ*mstances. It is a relative or comparative, not an absolute term and its application depends upon the situation of the parties and the degree of care and vigilance which the circ*mstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circ*mstances.” To repeat, by such a test, no negligence could be imputed to defendantappellee, and the action of plaintiff-appellant must necessarily fail. The facts, being what they are, compel the conclusion that the liability sought to be fastened on defendant-appellee had not arisen. Plaintiff-appellant, in her brief, however, would seek a reversal of the judgment appealed from on the ground that there was a failure to appreciate the true situation. Thus, the first three assigned errors are factual in character. The third assigned error could be summarily disposed of. It would go against the evidence to maintain the view that the whistle was not sounded and the brakes not applied at a distance of 300 meters before reaching the crossing. The first two assigned errors would make much of the failure of the lower court to hold that the crossing bars not having been put down and there being no guard at the gate-house, there still was a duty on the part of Corliss to stop his jeep to avoid a collision and that Teodorico Capili, who drove the engine, was not qualified to do so at the time of the accident. For one cannot just single out a circ*mstance and then confidently assign to it decisive weight and significance. Considered separately, neither of the two above errors assigned would call for a judgment different in character. Nor would a combination of acts allegedly impressed with negligence suffice to alter the result. The quantum of proof required still had not been met. The alleged errors fail of their desired effect. The case for plaintiff-appellant, such as it was, had not been improved. There is no justification for reversing the judgment of the lower court. It cannot be stressed too much that the decisive considerations are too variable, too dependent in the last analysis upon a common sense estimate of the situation as it presented itself to the parties for us to be able to say that this or that element having been isolated, negligence is shown. The factors that enter the judgment are too many and diverse for us to imprison them in

NEGLIGENCE

the formula sufficient of itself to yield the correct answer to the multi-faceted problems the question of negligence poses. Every case must be dependent on its facts. The circ*mstances indicative of lack of due care must be judged in the light of what could reasonably be expected of the parties. If the objective standard of prudence be met, then negligence is ruled out. In this particular case, it would be to show less than fidelity to the controlling facts to impute negligence to defendant-appellee. The first three errors assigned certainly do not call for that conclusion. xxx What Justice Cardozo announced would merely emphasize what was set forth earlier that each and every case on questions of negligence is to be decided in accordance with the peculiar circ*mstances that present themselves. There can be no hard and fast rule. There must be that observance of the degree of care, precaution, and vigilance which the situation demands. Thus, defendant-appellee acted. It is undeniable then that no negligence can rightfully be imputed to it. What commends itself for acceptance is this conclusion arrived at by the lower court: “Predicated on the testimonies of the plaintiff’s witnesses, on the knowledge of the deceased and his familiarity with the setup of the checkpoint, the existence of the tracks; and on the further fact that the locomotive had blown its siren or whistle, which was heard by said witnesses, it is clear that Corliss, Jr. was so sufficiently warned in advance of the oncoming train that it was incumbent upon him to avoid a possible accident — and this consisted simply in stopping his vehicle before the crossing and allowing the train to move on. A prudent man under similar circ*mstances would have acted in this manner. This, unfortunately, Corliss, Jr. failed to do.” VICTORINO CUSI and PILAR POBRE vs. PHILIPPINE NATIONAL RAILWAYS G.R. No. L-29889, May 31, 1979 GUERRERO, J.: Direct appeal from the decision of the Court of First Instance of Rizal ordering defendant-appellant to indemnify the plaintiffs-appellees in the total amount of Two Hundred Thirty-Nine Thousand and Six Hundred FortyEight Pesos, and Seventy-Two Centavos (P239,648.72) for injuries received in a collision caused by the gross negligence of defendant-appellant, plus Ten Thousand Pesos (P10,000.00) as attorney’s fees and expenses of litigation. Upon the amended and supplemental complaints for damages filed by plaintiffs-appellees, the spouses Victorino Cusi and Pilar Pobre before the Court of First Instance of Rizal against the Manila Railroad Company, now the Philippine National Railways and duly answered by the latter and after due hearing, the following facts appear as undisputed: On the night

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of October 5, 1963, plaintiffs-appellees attended a birthday party inside the United Housing Subdivision in Parañaque, Rizal. After the party which broke up at about 11 o’clock that evening, the plaintiffs-appellees proceeded home in their Vauxhall car with Victorino Cusi at the wheel. Upon reaching the railroad tracks, finding that the level crossing bar was raised and seeing that there was no flashing red light, and hearing no whistle from any coming train, Cusi merely slackened his speed and proceeded to cross the tracks. At the same time, a train bound for Lucena traversed the crossing, resulting in a collision between the two. The impact threw the plaintiffs-appellees out of their car which was smashed. One Benjamin Franco, who came from the same party and was driving a vehicle right behind them, rushed to their aid and brought them to San Juan de Dios Hospital for emergency treatment. Later, the plaintiffs-appellees were transferred to the Philippine General Hospital. A week later, Mrs. Cusi transferred to the Manila Doctors Hospital where Dr. Manuel Rivera, head of the Orthopedic and Fracture Service of the Philippine General Hospital, performed on her a second operation and continued to treat her until her discharge from the hospital on November 2, 1963. Thereafter, Dr. Rivera treated her as an out-patient until the end of February, 1964 although by that time the fractured bones had not yet healed. Mrs. Cusi was also operated on by Dr. Francisco Aguilar, Director of the National Orthopedic Hospital, in May, 1964 and in August, 1965, after another operation in her upper body from the chest to the abdomen, she was placed in cast for some three (3) months and her right arm immobilized by reason of the cast. xxx As the action is predicated on negligence, the New Civil Code making clear that “whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done,” the crucial question posed in the petition at bar is the existence of negligence on the part of defendant-appellant as found by the lower court. 1. The question of negligence being one of fact, the lower court’s finding of negligence on the part of the defendant-appellant deserves serious consideration by the Court. It commands great respect and weight, the reason being that the trial judge, having the advantage of hearing the parties testify and of observing their demeanor on the witness stand, is better situated to make conclusions of facts. Thus, it has been the standing practice of appellate courts to accord lower court’s judgments the presumption of correctness. And unless it can be shown that error or errors, substantial in character, be shown in the conclusion arrived at, or that there was abuse in judicial scrutiny, We are bound by their judgments. On this ground alone. We can rest the affirmance of the judgment appealed from. 2. Nor is the result different even if no such presumption were indulged in, that is, even if We were to resolve whether or not there exist compelling reasons for an ultimate reversal.

The judicial pronouncement below that the gross negligence of defend-

NEGLIGENCE

ant-appellant was the proximate cause of the collision has been thoroughly reviewed by this Court and we fully affirm the same. Negligence has been defined by Judge Cooley in his work on Torts (3d. ed.), sec. 1324 as “the failure to observe for the protection of the interests of another person that degree of care, precaution, and vigilance which the circ*mstances justly demand, whereby such other person suffers injury.” By such a test, it can readily be seen that there is no hard and fast rule whereby such degree of care and vigilance is measured, it is dependent upon the circ*mstances in which a person finds himself so situated. All that the law requires is that it is always incumbent upon a person to use that care and diligence expected of reasonable men under similar circ*mstances. These are the circ*mstances attendant to the collision. Undisputably, the warning devices installed at the railroad crossing were manually operated; there were only 2 shifts of guards provided for the operation thereof — one, the 7:00 A.M. to 3:00 P.M. shift, and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the accident, the train for Lucena was on an unscheduled trip after 11:00 P.M. During that precise hour, the warning devices were not operating for no one attended to them. Also, as observed by the lower court, the locomotive driver did not blow his whistle, thus: “. . . he simply sped on without taking an extra precaution of blowing his whistle from a distance of 50 to 10 meters from the crossing. That the train was running at full speed is attested to by the fact that notwithstanding the application of the emergency brakes, the train did not stop until it reached a distance of around 100 meters.” These facts assessed together show the inadequacy, nay, the absence, of precautions taken by the defendant-appellant to warn the travelling public of the impending danger. It is clear to Us that as the signal devices were wholly manually-operated, there was an urgent need for a flagman or guard to man the crossing at all times. As it was, the crossing was left unattended to after eleven o’clock every night and on the night of the accident. We cannot in all reason justify or condone the act of the defendant-appellant allowing the subject locomotive to travel through the unattended crossing with inoperative signal devices, but without sending any of its employees to operate said signal devices so as to warn oncoming motorists of the approach of one of its locomotives. It is not surprising therefore that the inoperation of the warning devices created a situation which was misunderstood by the riding public to mean safe passage. Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the approach of a train, the failure of the device to operate is generally held to be evidence of negligence, which maybe considered with all the circ*mstances of the case in determining whether the railroad company

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was negligent as a matter of fact. The set of circ*mstances surrounding the collision subject of this case is very much similar to that of Lilius vs. Manila Railroad Company, 59 Phil. 758 (1934), where this Court upheld the lower court’s finding of negligence on the part of defendant locomotive company upon the following facts — “. . . on the part of the defendant company, for not having had on that occasion any semaphore at the crossing at Dayap, to serve as a warning to passersby of its existence in order that they might take the necessary precautions before crossing the railroad; and, on the part of its employees — the flagman and switchman, for not having remained at his post at the crossing in question to warn passersby of the approaching train; the station master, for failure to send the said flagman and switchman to his post on time; and the engineer, for not having taken the necessary precautions to avoid an accident, in view of the absence of said flagman and switchman, by slackening his speed and continuously ringing the bell and blowing the whistle before arriving at the crossing.” Defendant-appellant rests its defense mainly on Section 56(a) of the Motor Vehicle Law. Thus: “Section 56(a) — Traversing through streets and railroad crossing, etc. — All vehicles moving on the public highways shall be brought to a full stop before traversing any ‘through street’ or railroad crossing. Whenever any such ‘through street’ or crossing is so designated and signposted, it shall be unlawful for the driver of any vehicle to fail to stop within twenty meters but not less than two and one-half meters from such ‘through street’ or railroad crossing.” The defense presupposes that the failure of plaintiffs-appellees to stop before proceeding to traverse the crossing constitutes contributory negligence, thereby precluding them from recovering indemnity for their injuries and damages. The candor of defendant-appellant in interposing such a defense is doubtful. As seemingly observed by the lower court, the defense, through inadvertence or deliberateness, did not pursue further the excepting clause of the same section, thus to go on: “Provided, however, that the driver of a passenger automobile or motorcycle may instead of coming to a full stop, slow down to not more than ten kilometers per hour whenever it is apparent that no hazard exists.” After a thorough perusal of the facts attendant to the case, this Court is in full accord with the lower court. Plaintiff-appellee Victorino Cusi had exercised all the necessary precautions required of him as to avoid injury to himself and to others. We find no need for him to have made a full stop; relying on his faculties of sight and hearing, Victorino Cusi had no reason to

NEGLIGENCE

anticipate the impending danger. The record shows that the spouses Cusi previously knew of the existence of the railroad crossing, having stopped at the guardhouse to ask for directions before proceeding to the party. At the crossing, they found the level bar raised, no warning lights flashing nor warning bells ringing, nor whistle from an oncoming train. They safely traversed the crossing. On their return home, the situation at the crossing did not in the least change, except for the absence of the guard or flagman. Hence, on the same impression that the crossing was safe for passage as before, plaintiffappellee Victorino Cusi merely slackened his speed and proceeded to cross the tracks, driving at the proper rate of speed for going over railroad crossings. Had defendant-appellant been successful in establishing that its locomotive driver blew his whistle to warn motorists of his approach to compensate for the absence of the warning signals, and that Victorino Cusi, instead of stopping or slackening his speed, proceeded with reckless speed and regardless of possible or threatened danger, then We would have been put in doubt as to the degree of prudence exercised by him and would have, in all probability, declared him negligent. But as the contrary was established, we remain convinced that Victorino Cusi had not, through his own negligence, contributed to the accident so as to deny him damages from the defendant-appellant.

6.

OTHER FACTORS TO CONSIDER IN DETERMINING NEGLIGENCE

There are certain cases where other factors determine the presence or absence of negligence. Discussed hereunder are the effects of violation of statute and rules, practice and custom.

A.

VIOLATION OF RULES AND STATUTES.

a.

Statutes and Ordinances.

Violation of statute may be treated either as (1) a circ*mstance which establishes a presumption of negligence, (2) negligence per se or (3) a circ*mstance which should be considered together with other circ*mstances as evidence of negligence. (Marinduque Iron Mines Agents, Inc. vs. The Workmen’s Compensation Commission, 99 Phil. 480, 484-485 [1956]). It is up to the legislature or the Court to select which competing theory should be applied in a particular jurisdiction. In several cases, the Supreme Court consistently held that violation of statutory duty is negligence per se. (Cipriano vs. Court of Appeals, 263 SCRA 711, 717 [1996]; F.F. Cruz and Co., Inc. vs. Court of Appeals, 164 SCRA 731 [1988]; Teague vs. Fernandez, 51 SCRA 181). “The reason for this rule is that the statute or ordinance becomes the standard of care or conduct to which the reasonably prudent person is held. Failure to follow the statute involved constitutes a breach

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of the legal duty imposed and fixed by the statute. Since negligence is a breach of legal duty, the violator of a statute is then negligent as a matter of law.” (Walz vs. Hudson, 327 N.W. 2d 120 [1982]). At times, the definite and inflexible standard of care of the traditional reasonably prudent man may be, in the opinion of the Legislature, an insufficient measure of the care that should be exercised to guard against a recognized danger. The Legislature may, by statute, prescribe additional safeguards and may define the duty and standard of care in rigid terms. When the Legislature has spoken, the standard of care required is no longer what the reasonably prudent man would do under the circ*mstances but what the Legislature has commanded. (Tedla vs. Ellman, 280 N.Y. 124, 19 N.E. 2D 987 [1939]). However, not all statutory enactments prescribe inflexible commands that must be followed. Some may prescribe general rules of conduct which must be followed under usual conditions. When unusual conditions occur, strict observance may defeat the purpose of the rule and may even lead to adverse results. (Tedla vs. Ellman, ibid.). For instance, a statute or ordinance requiring all persons to walk on the sidewalk may be construed as subject to an exception permitting pedestrians to walk on the road itself, if doing so will prevent an accident. Moreover, there are specific cases when the statute expressly provides that violation of statutory duty merely establishes a presumption of negligence. These include cases covered by Articles 2184 and 2185 of the Civil Code. The rule that violation of statute is negligence per se was applied in F.F. Cruz and Co. Inc. vs. Court of Appeals (164 SCRA 733 [1988]). In the said case, the defendant was found guilty of negligence since it failed to construct a firewall between its property and plaintiff’s residence that sufficiently complies with the pertinent city ordinances. As a result, the plaintiff’s house was burned when fire originating from defendant’s furniture manufacturing shop spread to plaintiff’s house.

b.

Administrative Rules.

With respect to the rules promulgated by administrative agencies, the Supreme Court observed in one case that “there is practically unanimity in the proposition that violation of a rule promulgated by a Commission or Board is not negligence per se but it may be evidence of negligence.” (Marinduque Iron Mines Agents, Inc. vs. The Workmen’s Compensation Commission, supra, citing C.J.S., Vol. 65, p. 427).

NEGLIGENCE

However, in Cipriano vs. Court of Appeals (supra), the Supreme Court considered violation of a Ministry (Department) Order which was issued pursuant to and to implement a statute as negligence per se. Petitioner in said case was the owner of an establishment engaged in rustproofing of vehicles. Private respondent’s car, that was brought to the petitioner’s shop for rustproofing, was burned when fire destroyed the same shop. It was established later that petitioner failed to comply with the requirement of Presidential Decree No. 1572 to register with the Department of Trade and Industry as well as Ministry Order No. 32 issued by the same Department requiring all covered enterprises to secure insurance coverage. Such failure to comply with the statute and administrative regulation was considered negligence per se.

c.

Private Rules of Conduct.

The same rule applies to rules imposed by private individuals like an employer. The order or prohibition of an employer “couldn’t be of greater obligation than the rule of a Commission or Board” and violation thereof is merely a “possible evidence of negligence.” (Marinduque Iron Mines Agents, Inc. vs. The Workmen’s Compensation Commission, supra). In the last cited case, the employees of the petitioner were prohibited by the employer from riding its hauling trucks. One of the employees violated such prohibition and rode one of the truck. The same employee died because the truck turned over and hit a coconut tree while the driver was negligently trying to overtake another truck. The heirs of the deceased were able to recover despite his violation of the rules of the employer.

d.

Proximate Cause.

It is important to emphasize, however, that in any event, the requisites of quasi-delict must still be complete before an action based thereon can prosper. Although violation of statute is negligence per se (or even in case negligence is merely presumed), the plaintiff must still present proof that the proximate cause of his injury is the negligence of the defendant. Proof must be presented that there was causal connection between the negligence or violation of statute and the injury. Absent such proof, the defendant will not be held liable. (Honoria Delgado Vda. de Gregorio, et al. vs. Go Chong Bing, 102 Phil. 556 [1957]; Dunkle, et al. vs. Emil Landert, 23 CAR 2s 1083). In other words, the rule that no liability attaches unless it appears that there was a causal connection between the negligent act or omission charged and the injury is applicable where the act or omission complained of constitutes a violation of some statute or ordinance

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even though such violation constitutes negligence per se or is prima facie evidence of negligence. (65 CJS 1143-1144). Hence, the Supreme Court ruled in United States vs. Bonifacio (supra) that even if the driver violated traffic rules by going beyond the speed limit, there would still be no liability on account thereof because causal relation was not established. Thus, the Supreme Court explained: The provisions of Article 568 of the Criminal Code under which the accused was convicted are as follows:

x x x

x x x

xxx

“Any person who, while violating any regulation, shall, by any act imprudence or negligence not amounting to reckless imprudence, commit an offense, shall suffer the penalty of arresto mayor in its medium and maximum degrees.” This does not mean that in every case in which one accidentally injures or kills another he is criminally liable therefor, if at the moment he happens to be guilty of a violation of some petty regulation (reglamento). The injury or death must have resulted from some “imprudence or negligence” (imprudencia or negligencia) on his part. True, it need only be slight negligence, if accompanied by a violation of the regulations, but the relation of cause and effect must exist between the negligence or imprudence of the accused and the injury inflicted. If it appears that the injury in no wise resulted from the violation of the regulations, or the negligent conduct of the accused, he incurs no criminal liability under the provisions of this article. Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out the following question and answer which clearly discloses that a conviction thereunder cannot be maintained, unless there was culpable negligence in the violation of a duly prescribed regulation; and unless, further, the latter was the proximate and immediate cause of the injury inflicted: “Question No. 17. — A pharmacist left his store forgetting and leaving behind the keys to the case where the most powerful drugs were kept. During his absence his clerk filed a prescription which he believed was duly made out by a physician but which, in fact, was signed by an unauthorized person. The prescription called for certain substances which were afterwards employed to procure an abortion. These substances, according to a medical report, were of a poisonous and extremely powerful nature such as should be most carefully safeguarded and only expended after ratification of the prescription in accordance with article 20 of the ordinance relating to the practice of pharmacy. Under these circ*mstances would it be proper to consider the pharmacist as

NEGLIGENCE

guilty of the offense of simple imprudence with violation of the regulation of the said faculty? The Supreme Court has decided this question in the negative on the ground that the fact of the pharmacist having forgotten and left behind, during the short time he was out walking, the key of the closet in which, in conformity with the pharmacy ordinances, he kept the most powerful and active drugs, properly considered, does not constitute the culpable negligence referred to in Article 581 of the Penal Code, nor was it the proximate and immediate cause of the said prescription being filled in his store without being properly ratified by the physician who signed it, as required by the said ordinances. The Court held, therefore, that the trial court committed an error of law in holding the appellant liable. (Decision of December 23, 1881; Official Gazette of April 14, 1832).” See also the recent decision of the Tribunal Supremo de España dated July 11, 1906, wherein the doctrine is reaffirmed in a case involving the alleged negligence of certain railroad employees in handling railroad cars. Doubtless a presumption of negligence will frequently arise from the very fact that an accident occurred at the time when the accused was violating a regulation; especially if the regulation has for its object the avoidance of such an accident. But this presumption may, of course, be rebutted in criminal as well as in civil cases by competent evidence. In the Federal Court of the United States the rule is stated as follows: “Where a ship at the time of collision is in actual violation of a statutory rule intended to prevent collisions the burden is upon her of showing that her fault could not have been a contributory cause of the collision.” (7 Cyc., 370 and numerous other cases there cited). The evidence of record in the case at bar clearly and satisfactorily discloses that even if the train was running at a speed slightly in excess of the maximum speed prescribed in the regulations, that fact had no causal relation to the accident and in no wise contributed to it.”

The Supreme Court reiterated the rule in Sanitary Steam Laundry, Inc. vs. Court of Appeals (300 SCRA 20 [1998]). In the said case, the petitioner claimed that the defendant corporation was negligent because it violated Article III, Section 2 of R.A. No. 4136, known as the Land Transportation and Traffic Code, which provides that “no person operating any vehicle shall allow more passengers or more freight or cargo in his vehicle than its registered carry capacity” and Article IV, Section 3(e) which states that “every motor vehicle of more than one meter of projected width, while in use on any public high-

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way shall bear tow headlights . . . which not later than one-half hour after sunset and until at least one-hour before sunrise and whenever weather conditions so require, shall both be lighted.” The Supreme Court explained that the alleged violations contributed to the collision between the vehicles. The petitioner, however, had the burden of showing a causal connection between the injury received and the violation of the Land Transportation and Traffic Code. He must show that the violation of the statute was the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury (pp. 26-29). In some cases, however, proof of violation of statute and damage to the plaintiff may itself establish proximate cause. These are cases where the damage to the plaintiff is the damage which is sought to be prevented by the statute. (Teague vs. Fernandez, 51 SCRA 181 [1973]). CASE: VDA. DE GREGORIO vs. GO CHING BING 102 Phil. 556 [1957] This is an appeal from a judgment of the Court of First Instance of Davao absolving defendant from liability for the accidental death of Quirico Gregorio. It came to this Court as the amount demanded in the complaint is more than P50,000. On or before June 2, 1952, defendant was the owner of a truck. He had a driver and a cargador or driver’s helper by the name of Francisco Romera. In the afternoon of June 2, 1952, defendant ordered Romera to drive his truck, with instructions to follow another truck driven by his driver and help the latter in crossing Sumlog river which was then flooded, should it be unable to cross the river because of the flood. Romera at that time was not a licensed driver. He only had a student’s permit, issued to him on March 31, 1952 (Exhibit “1”). The truck started from the town of Lupon at about 5:30 o’clock in the afternoon, driven by Romera. Some persons boarded the truck and among them was one policeman by the name of Venancio Orfanel. While the truck was on the way, it made a stop and then Orfanel took the wheel from Romera, while the latter stayed on the driver’s left, reclined on a spare tire inside of the truck. As to the circ*mstances under which Orfanel was able to take hold of and drive the truck, there is some dispute and this matter will be taken up later in the decision.

While the truck was being driven by Orfanel, with another truck ahead

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of it driven by defendant’s driver, it so happened that they came to a truck that was trying to park on the left side of the road. Romera suggested to Orfanel that he shift to low gear and Orfanel did so. But as they approached the parking truck, and in order to avoid colliding with it, Orfanel swerved the truck towards the right. It so happened that at that time two pedestrians were on the right side of the road. As the truck had swerved to the right and was proceeding to hit the said pedestrians, Romera told Orfanel to apply the brake, but Orfanel instead of doing so put his foot on the gasoline and the truck did not stop but went on and hit and ran over one of the pedestrians, by the name of Quirico Gregorio. The plaintiffs-appellants in this action are Gregorio’s widow and his children and heirs. Because of the accident, Orfanel was prosecuted for homicide with reckless imprudence. He pleaded guilty to the charge and was sentenced accordingly. As hinted above, an important issue in the case has relation to the circ*mstances under which Orfanel was able to take hold of the wheel and drive the truck. To sustain the theory that defendant’s cargador Francisco Romera was negligent, plaintiffs introduced one Javier A. Dayo as a witness. According to this witness the truck was speeding at the rate of 20 miles an hour. According to him also, while the truck was about to pass by the house of one Lucio, running at a speed of 20 miles per hour, he heard Romera shouting “hand brake! hand brake!”; that both Orfanel and Romera tried to turn the driver’s wheel to the left and direct the truck towards the left to avoid the collision. According to this witness also, Romera gave the wheel to Orfanel voluntarily upon the request of the latter. Plaintiffs also sought to prove that Romera gave the truck voluntarily to the policeman by presenting the affidavit of Romera made on June 3, 1952 (Exhibit “1”). This affidavit, however, is inadmissible as evidence against the defendant because it is hearsay with respect to him. It may not be considered as part of the res gestae either, because the affidavit was taken one day after the incident. Against the above evidence, the defendant testified that he gave positive instructions to Romera not to allow anybody to drive the truck, and Romera himself testified that he had warned Orfanel that his master prohibited him from allowing anybody to drive the truck, but that as Orfanel was a uniformed policeman and insisted that he drive the truck, and that as he believed that the policeman knew how to drive, he let him drive the truck. We are of the belief that defendant’s claim that Romera gave the wheel to the policeman for fear of, or out of respect for, the latter, has been proved by a preponderance of the evidence. The testimony of witness Dayo is not corroborated by any other testimony. As he testified that he was two meters behind Romera, he could not have noticed with exactness the circ*mstances under which the policeman was able to get hold of the wheel and drive the truck and his testimony in that respect cannot be believed. We are, therefore, forced to the conclusion that the defendant’s cargador, or Francisco Romera, gave the wheel to Orfanel out of respect for the latter, who was a uniformed policeman and because he believed that the latter had both the ability and

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the authority to drive the truck, especially as he himself had only a student’s permit and not a driver’s license. The court a quo dismissed the action on the ground that as the death or accident was caused by an act or omission of a person who is not in any way related to the defendant, and as such act or omission was punishable by law, and as a matter of fact he had already been punished therefor, no civil liability should be imposed upon the defendant. Against this decision the plaintiffs have appealed to this Court, contending that when defendant permitted his cargador, who was not provided with a driver’s license, to drive the truck, he thereby violated the provisions of the Revised Motor Vehicle Law (section 28, Act No. 3992), and that this constitutes negligence per se. (People vs. Santos, et al., CA-G.R. Nos. 1088-1089R). But admitting for the sake of argument that the defendant had so violated the law, or may be deemed negligent in entrusting the truck to one who is not provided with a driver’s license, it is clear that he may not be declared liable for the accident because his negligence was not the direct and proximate cause thereof. The leading case in this jurisdiction on negligence is that of Taylor vs. Manila Electric Railroad and Light Company (16 Phil. 8). Negligence as a source of obligation both under the civil law and in American cases was carefully considered and it was held: “We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competent evidence:

“(1) Damages to the plaintiff.

“(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty. “(3) The connection of cause and effect between the negligence and the damage.” (Taylor vs. Manila Electric Railroad and Light Co., supra, p. 15). In accordance with the decision of the Supreme Court of Spain, in order that a person may be held guilty for damage through negligence, it is necessary that there be an act or omission on the part of the person who is to be charged with the liability and that damage is produced by the said act or omission. “In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is the duty of him who shall claim damages to establish their existence. The decisions of April 9, 1896, and March 18, July 6, and September 27, 1898, have especially supported the principle, the first setting forth in detail the necessary points of the proof, which are two: An Act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act or omission.

“This includes, by inference, the establishment of relation of cause or

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effect between the act or the omission and the damage; the latter must be the direct result of one of the first two. As the decision of March 22, 1881, said, it is necessary that the damages result immediately and directly from an act performed culpably and wrongfully; ‘necessarily presupposing a legal ground for imputability.’” (Taylor vs. Manila Electric Railroad and Light Co., supra, p. 28). It is evident that the proximate, immediate and direct cause of the death of the plaintiffs’ intestate was the negligence of Orfanel, a uniformed policeman, who took the wheel of the truck from defendant’s cargador, in spite of the protest of the latter. The reason for absolving the defendant therefor is not because the one responsible for the accident had already received indemnification for the accident, but because there is no direct and proximate causal connection between the negligence or violation of the law by the defendant to the death of the plaintiffs’ intestate.

e. Negligence per se rule reconsidered.

Statutes may also provide specific rules of conduct to be observed in a given situation and may even impose penal sanctions in case the rule is not observed. In those cases, the law already determines in advance what a reasonable man should do under certain circ*mstances. Example of statutes that provide for specific rules are the National Building Code and the Fire Code of the Philippines. More specific rules are likewise provided for by administrative agencies that are tasked to enforce and implement statutory mandate. In the field of environmental protection, for instance, administrative agencies may provide for specific guidelines pointing out what every individual is supposed to do before proceeding with a particular project. Thus, the rules of the Laguna Lake Development Authority provide for specific requirements before an industrial development can proceed in its area of jurisdiction. Similarly, the Department of Environment and Natural Resources may promulgate rules specifying particular acts that must be performed by owners of commercial establishments and the equipment that should be installed by them. As explained earlier, the weight of authority is that violation of statute is negligence per se. Although there is authority for the view that violation of administrative rules merely constitute evidence of negligence on the part of the violator, there is also authority for the view that violation of administrative rules is also negligence per se. It is believed that the better rule is to consider violation of statute or administrative rules as a circ*mstance that gives rise to a presumption of negligence unless the law provides otherwise. It is not consistent with the demands of justice and equity to put citizens in straightjackets consisting of detailed prescriptions with no room for

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exceptions or discretion. Legal theorist H.L.A. Hart commented that communications of standards of behaviour, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate. They will have what has been termed an “open texture.” He went on further to explain: “x x x So far we have presented this, in the case of legislation, as a general feature of human language; uncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact. Natural languages like English are when so used irreducibly open-textured. It is, however, important to appreciate why, apart from this dependence on language as it actually is, with its characteristics of open texture, we should not cherish, even as an ideal, the conception of a rule so detailed that the question whether it applied or not to a particular case was always settled in advance, and never involved, at the point of actual application, a fresh choice between open alternatives. Put shortly, the reason is that the necessity for such choice is thrust upon us because we are men, not gods. It is a feature of the human predicament (and so of the legislative one) that we labour under two connected handicaps whenever we seek to regulate, unambiguously and in advance, some sphere of conduct by means of general standards to be used without further official direction on particular occasions. The first handicap is our relative ignorance of fact; the second is our relative indeterminacy of aim. If the world in which we live were characterized only by a finite number of features, and these together with all the modes in which they could combine were known to us, then provision could be made in advance for every possibility. We could make rules, the application of which to particular cases never called for a further choice. Everything could be known, and for everything, since it could be known, something could be done and specified in advance by rule. This would be a world fit for ‘mechanical’ jurisprudence. Plainly, this world is not our world; human legislators can have no such knowledge of all possible combinations of circ*mstances which the future may bring. This inability to anticipate brings with it a relative indeterminacy of aim. x x x” (H.L.A. Hart, Concept of the Law, 1997 Ed., p. 128).

The rigidity of the rule that violation of statute is negligence per se would necessarily result in a finding of negligence even if they should be excluded from the operation of the rule “to give effect to reasonable social aims.” On the other hand, the rule that will give rise merely to a presumption of negligence would give room for human handicaps to operate. It will allow the defendant in negligence

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cases to prove that his case is one of those unanticipated cases where the rule is inapplicable. There would be no harm to the injured party because if the said harm caused by the defendant is the harm sought to be prevented by the statute, then it can only mean that the defendant will not be able to rebut the presumption of negligence. This view is a matter of equity and is supported by the philosophical musings of the great Aristotle in his extremely influential writing Nicomachean Ethics (Book 5, x, 3-7). He expounded that: “The source of the difficulty is that equity, though just, is not legal justice, but a rectification of legal justice. The reason for this is that law is always a general statement, yet there are cases which is not possible to cover in a general statement. In matters therefore, where, while it is necessary to speak in general terms, it is not possible to do so correctly, the law takes into consideration the majority of cases, although it is not unaware of the error this involves. And this does not make it a wrong law; for the error is not in the law nor in the lawgiver, but in the nature of the case: the material of conduct is essentially irregular. When therefore the law lays down a general rule, and thereafter a case arises which is an exception to the rule, it is then right, where the lawgiver’s pronouncement because of its absoluteness is defective and erroneous, to rectify the defect by deciding as the lawgiver would himself decide if he were present on the occasion, and would have enacted if he had been cognisant of the case in question. Hence, while the equitable is just, and is superior to one sort of justice, it is not superior to absolute justice, but only to the error due to its absolute statement. This is the essential nature of the equitable; it is a rectification of law where law is defective because of its generality. In fact, this is the reason why things are not all determined by law; it is because there are some cases for which it is impossible to lay down a law, so that a special ordinance becomes necessary. For what is itself indefinite can only be measured by an indefinite standard, like the leaden rule used by Lesbian builders; just as that rule is not rigid but can be bent to the shape of the stone, so a special ordinance is made to fit the circ*mstances of the case.” (Harris Rackham translation, 1996 Ed., pp. 133-134).

B.

PRACTICE AND CUSTOM.

Justice Holmes said that “what usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.” (Texas & Pac. Ry. vs. Behymer, 189 U.S. 468, 470 [1903]). Such statement is equally applicable in this jurisdiction. Compliance with the practice and custom in a community will not automatically result

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in a finding that the actor is not guilty of negligence. On the other hand, non-compliance with the custom or practice in a community does not necessarily mean that the actor was negligent. The rule was applied by the Supreme Court in Yamada vs. Manila Railroad Co. (33 Phil. 11, 12-13 [1915]). In that case, an automobile was struck by a train while the former was crossing the tracks. The owner of the automobile tried to establish the absence of negligence on the part of the driver of the automobile by presenting evidence that there was a custom established among automobile drivers of Manila by which they habitually drove their cars over the railroad crossings without slackening speed. The Supreme Court rejected the argument by ruling that: “To this the obvious reply may be made, for the moment admitting the existence of the custom, that a practice which is dangerous to human life cannot ripen into custom which will protect anyone who follows it. To go upon a railroad crossing without making any effort to ascertain the approach of a train is so hazardous an act and one so dangerous to life, that no one may be permitted to excuse himself who does it, provided injury results. One who performs an act so inherently dangerous cannot, when an accident occurs, take refuge behind the plea that others have performed the same act safely.” It could very well be that the custom in a community is the correct way of doing things under certain circ*mstances. The way of doing things in a particular situation may, in fact, have ripened into custom precisely because it is how a reasonable man would act under the same circ*mstances. The very reason why they have been permitted by society is that they are beneficial rather than prejudicial (S.D. Martinez v. Van Buskirk, G.R. No. L-5691, December 27, 1910). CASE: S. D. MARTINEZ, et al. vs. WILLIAM VAN BUSKIRK G.R. No. L-5691, December 27, 1910 MORELAND, J.: The facts found by the trial court are undisputed by either party in this case. They are — “That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation of fodder by the defendant, and to which was attached a pair

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of horses, came along the street in the opposite direction to that in which said plaintiff was proceeding, and that thereupon the driver of the said plaintiff’s carromata, observing that the delivery wagon of the defendant was coming at great speed, crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant’s delivery wagon an opportunity to pass by, but that instead of passing by the defendant’s wagon and horses ran into the carromata occupied by said plaintiff with her child and overturned it, severely wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and the harness upon the horse which was drawing it.

x x x

x x x

xxx

“These facts are not disputed, but the defendant presented evidence to the effect that the cochero, who was driving his delivery wagon at the time the accident occurred, was a good servant and was considered a safe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable on Calle Herran, and that for the purpose of delivery thereof, the cochero driving the team as defendant’s employee tied the driving lines of the horses to the front end of the delivery wagon and then went back inside of the wagon for the purpose of unloading the forage to be delivered; that while unloading the forage and in the act of carrying some of it out, another vehicle drove by the driver of which cracked a whip and made some other noises, which frightened the horses attached to the delivery wagon and they ran away, and the driver was thrown from the inside of the wagon out through the rear upon the ground and was unable to stop the horses; that the horses then ran up and on which street they came into collision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.”

The defendant himself was not with the vehicle on the day in question.

Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for P442.50, with interest thereon at the rate of 6 percent per annum from the 17th day of October, 1908, and for the costs of the action. The case is before us on an appeal from that judgment. There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The provisions of that code pertinent to this case are — “Art. 1902. A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. “Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. “The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who live with them. “Guardians are liable for the damages caused by minors or incapacitated persons who are under their authority and live with them.

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“Owners or directors of an establishment or enterprise are equally liable for the damages caused by the employees in the service of the branches in which the latter may be employed or on account of their duties. “The State is liable in this sense when it acts through a special agent, but not when the damages should have been caused by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article shall be applicable. “Finally, masters or directors of arts and trades are liable for the damages caused by their pupils or apprentices while they are under their custody. “The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage.” Passing the question whether or not an employer who has furnished a gentle and tractable team and a trusty and capable driver is, under the last paragraph of the above provisions, liable for the negligence of such driver in handling the team, we are of the opinion that the judgment must be reversed upon the ground that the evidence does not disclose that the cochero was negligent. While the law relating to negligence in this jurisdiction may possibly be some what different from that in Anglo-Saxon countries, a question we do not now discuss, the rules under which the fact of negligence is determined are, nevertheless, generally the same. That is to say, while the law designating the person responsible for a negligent act may not be the same here as in many jurisdictions, the law determining what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme Court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901). It appears from the undisputed evidence that the horses which caused the damage were gentle and tractable; that the cochero was experienced and capable; that he had driven one of the horses several years and the other five or six months; that he had been in the habit, during all that time, of leaving them in the condition in which they were left on the day of the accident; that they had never run away up to that time and there had been, therefore, no accident due to such practice; that to leave the horses and assist in unloading the merchandise in the manner described on the day of the accident was the custom of all cochero who delivered merchandise of the character of that which was being delivered by the cochero of the defendant on the day in question, which custom was sanctioned by their employers. In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner described by the evidence in this case, either under Spanish or American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422;

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Rumsey vs. Nelson, 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212). In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said: “He was performing his duty while removing the goods into the house, and, if every person who suffered a cart to remain in the street while he took goods out of it was obliged to employ another to look after the horses, it would be impossible for the business of the metropolis to go on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said: “The degree of care required of the plaintiff, or those in charge of his horse, at the time of the injury, is that which would be exercised by a person of ordinary care and prudence under like circ*mstances. It can not be said that the fact of leaving the horse unhitched is in itself negligence. Whether it is negligence to leave a horse unhitched must be depend upon the disposition of the horse; whether he was under the observation and control of some person all the time, and many other circ*mstances; and is a question to be determined by the jury from the facts of each case.”

In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial court to refuse to charge that “it is not negligence for the driver of a quiet, gentle horse to leave him unhitched and otherwise unattended on the side of a public highway while the driver is upon the sidewalk loading goods on the wagon.” The said court closed its opinion with these words: “There was evidence which could have fully justified the jury in finding that the horse was quiet and gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the alleged injury, and that the horse had been used for years in that way without accident. The refusal of the trial court to charge as requested left the jury free to find verdict against the defendant, although the jury was convinced that these facts were proven.

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held: “That evidence that a servant, whom traders employed to deliver goods, upon stopping with his horse and wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left the horse unfastened for four or five minutes while he was in the house, knowing that it was not afraid of cars, and having used it for three or four months without ever hitching it or knowing it to start, is not conclusive, as a matter of law, of a want of due care on his part.”

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable care and prudence. Where reasonable

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care is employed in doing an act not itself illegal or inherently likely to produce damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs. Arms, 91 U. S. 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292; Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34; Westerfield vs. Levis, 43 La. An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257). The act of defendant’s driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or imprudent. Indeed, the very reason why they have been permitted by society is that they are beneficial rather than prejudicial. Accidents sometimes happen and injuries result from the most ordinary acts of life. But such are not their natural or customary results. To hold that, because such an act once resulted in accident or injury, the actor is necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully invoked in such a case, does not in any sense militate against the reasoning presented. That maxim at most only creates a prima facie case, and that only in the absence of proof of the circ*mstances under which the act complained of was performed. It is something invoked in favor of the plaintiff before defendant’s case showing the conditions and circ*mstances under which the injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court said (p. 554): “. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if the steamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly built, as to tear up some of the planks of the flooring, this would be prima facie evidence of negligence on the part of the defendant’s agent in making the landing, unless upon the whole evidence in the case this prima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat under control of her officers and carefully managed by them, evidence that such damage was done in this case was prima facie, and, if unexplained, sufficient evidence of negligence on their part, and the jury might properly be so instructed.” There was presented in this case, and by the plaintiffs themselves, not only the fact of the runaway and the accident resulting therefrom, but also the conditions under which the runaway occurred. Those conditions showing of themselves that the defendant’s cochero was not negligent in the management of the horse, the prima facie case in plaintiffs’ favor, if any, was destroyed as soon as made. It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then

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being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The public, finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the public now, through the courts, without prior objection or notice, to be permitted to reverse the practice of decades and thereby make culpable and guilty one who had every reason and assurance to believe that he was acting under the sanction of the strongest of all civil forces, the custom of a people? We think not.”

C.

COMPLIANCE WITH RULES AND STATUTES.

While violation of statute may be considered negligence per se, non-compliance is not sine qua non of negligence. In addition, one cannot avoid a charge of negligence by showing that the act or omission complained of was of itself lawful or not violative of any statute or ordinance. Compliance therewith is not conclusive that there was no negligence. (65 C.J.S. 471). Thus, the defendant can still be held liable for negligence even if he can establish that he was driving below the speed limit. Compliance with the speed limit is not conclusive that he was not negligently driving his car. It can even be established that he was not negligent even if he was driving at a rate of speed beyond that required in a place where there are people crossing the street. 7.

DEGREES OF NEGLIGENCE

In some jurisdictions, degrees of negligence are not recognized and courts therein consider that the word “gross” does not have legal significance. A striking expression of this view is found in the statement that gross negligence is merely ordinary negligence with a vituperative epithet. (67 C.J.S 543, citing Travellers Insurance Co. vs. Reed Co., 135 SW 2d 611; see also People vs. Vistan, 42 Phil. 107, citing U.S. vs. Gomez, G.R. No. 14068, January 19, 1919). In the Philippines, the presence of gross negligence is statutorily recognized. Article 2231 of the Civil Code provides that “(i)n quasidelicts exemplary damages may be granted if the defendant acted with gross negligence.” Hence, although it is very difficult, if not impossible, to draw the line between ordinary negligence and gross negligence, courts are compelled to rule on the existence of gross negligence. Gross negligence is defined in this jurisdiction as negligence where there is “want of even slight care and diligence.” (Amadeo vs. Rio Y Olabarrieta, Inc., 95 Phil. 33). It is also characterized as implying conscious indifference to consequences; pursuing a course of

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conduct which would naturally and probably result to injury; utter disregard of consequences. (Marinduque Iron Mines Agents, Inc. vs. The Workmen’s Compensation Commission, supra, citing 38 Am. Jur. 691). There are legal writers who believe that gross negligence is similar to reckless imprudence under Article 365 of the Revised Penal Code. (Padilla, Civil Law, Civil Code Annotated, Vol. VII-A, 1994 Ed., p. 413). CASES: NEGROS NAVIGATION CO., INC. vs. THE COURT OF APPEALS G.R. No. 110398, November 7, 1997 This is a petition for review on certiorari of the decision of the Court of Appeals affirming with modification the Regional Trial Court’s award of damages to private respondents for the death of relatives as a result of the sinking of petitioner’s vessel. In April of 1980, private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special cabin tickets (Nos. 74411, 74412, 74413 and 74414) for his wife, daughter, son and niece who were going to Bacolod City to attend a family reunion. The tickets were for Voyage No. 457-A of the M/V Don Juan, leaving Manila at 1:00 p.m. on April 22, 1980. The ship sailed from the port of Manila on schedule. At about 10:30 in the evening of April 22, 1980, the Don Juan collided off the Tablas Strait in Mindoro, with the M/T Tacloban City, an oil tanker owned by the Philippine National Oil Company (PNOC) and the PNOC Shipping and Transport Corporation (PNOC/STC). As a result, the M/V Don Juan sank. Several of her passengers perished in the sea tragedy. The bodies of some of the victims were found and brought to shore, but the four members of private respondents’ families were never found. Private respondents filed a complaint on July 16, 1980 in the Regional Trial Court of Manila, Branch 34, against the Negros Navigation, the Philippine National Oil Company (PNOC), and the PNOC Shipping and Transport Corporation (PNOC/STC), seeking damages for the death of Ardita de la Victoria Miranda, 48, Rosario V. Miranda, 19, Ramon V. Miranda, Jr., 16, and Elfreda de la Victoria, 26. In its answer, petitioner admitted that private respondents purchased ticket numbers 74411, 74412, 74413 and 74414; that the ticket numbers were listed in the passenger manifest; and that the Don Juan left Pier 2, North Harbor, Manila on April 22, 1980 and sank that night after being rammed by the oil tanker M/T Tacloban City, and that, as a result of the collision,

NEGLIGENCE

some of the passengers of the M/V Don Juan died. Petitioner, however, denied that the four relatives of private respondents actually boarded the vessel as shown by the fact that their bodies were never recovered. Petitioner further averred that the Don Juan was seaworthy and manned by a full and competent crew, and that the collision was entirely due to the fault of the crew of the M/T Tacloban City. On January 20, 1986, the PNOC and petitioner Negros Navigation Co., Inc. entered into a compromise agreement whereby petitioner assumed full responsibility for the payment and satisfaction of all claims arising out of or in connection with the collision and releasing the PNOC and the PNOC/ STC from any liability to it. The agreement was subsequently held by the trial court to be binding upon petitioner, PNOC and PNOC/STC. Private respondents did not join in the agreement. xxx [After trial, the court rendered judgment on February 21, 1991 in favor of the private respondents ordering all the defendants to pay jointly and severally to the plaintiffs actual damages, compensatory damages for loss of earning capacity, compensatory damages for wrongful death, moral damages, exemplary damages, and attorney’s fees. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court with modifications. The case was elevated to the Supreme Court on a petition for review. The Supreme Court affirmed the finding that the victims were passengers of “Don Juan” and went on to explain that there was gross negligence.] Second. In finding petitioner guilty of negligence and in failing to exercise the extraordinary diligence required of it in the carriage of passengers, both the trial court and the appellate court relied on the findings of this Court in Mecenas vs. Intermediate Appellate Court, which case was brought for the death of other passengers. In that case, it was found that although the proximate cause of the mishap was the negligence of the crew of the M/T Tacloban City, the crew of the Don Juan was equally negligent as it found that the latter’s master, Capt. Rogelio Santisteban, was playing mahjong at the time of collision, and the officer on watch, Senior Third Mate Rogelio De Vera, admitted that he failed to call the attention of Santisteban to the imminent danger facing them. This court found that Capt. Santisteban and the crew of the M/V Don Juan failed to take steps to prevent the collision or at least delay the sinking of the ship and supervise the abandoning of the ship. Petitioner Negros Navigation was found equally negligent in tolerating the playing of mahjong by the ship captain and other crew members while on board the ship and failing to keep the M/V Don Juan seaworthy so much so that the ship sank within 10 to 15 minutes of its impact with the M/T Tacloban City. In addition, the Court found that the Don Juan was overloaded. The Certificate of Inspection, dated August 27, 1979, issued by the Philippine

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Coast Guard Commander at Iloilo City stated that the total number of persons allowed on the ship was 864, of whom 810 are passengers, but there were actually 1,004 on board the vessel when it sank, 140 persons more than the maximum number that could be safely carried by it. Taking these circ*mstances together, and the fact that the M/V Don Juan, as the faster and better-equipped vessel, could have avoided a collision with the PNOC tanker, this Court held that even if the Tacloban City had been at fault for failing to observe an internationally-recognized rule of navigation, the Don Juan was guilty of contributory negligence. Through Justice Feliciano, this Court held: The grossness of the negligence of the “Don Juan” is underscored when one considers the foregoing circ*mstances in the context of the following facts: Firstly, the “Don Juan” was more than twice as fast as the “Tacloban City.” The “Don Juan’s” top speed was 17 knots; while that of the “Tacloban City” was 6.3 knots. Secondly, the “Don Juan” carried the full complement of officers and crew members specified for a passenger vessel of her class. Thirdly, the “Don Juan” was equipped with radar which was functioning that night. Fourthly, the “Don Juan’s” officer on-watch had sighted the “Tacloban City” on his radar screen while the latter was still four (4) nautical miles away. Visual confirmation of radar contact was established by the “Don Juan” while the “Tacloban City” was still 2.7 miles away. In the total set of circ*mstances which existed in the instant case, the “Don Juan,” had it taken seriously its duty of extraordinary diligence, could have easily avoided the collision with the “Tacloban City.” Indeed, the “Don Juan” might well have avoided the collision even if it had exercised ordinary diligence merely. It is true that the “Tacloban City” failed to follow Rule 18 of the International Rules of the Road which requires two (2) power-driven vessels meeting end on or nearly end on each to alter her course to starboard (right) so that each vessel may pass on the port side (left) of the other. The “Tacloban City,” when the two (2) vessels were only three-tenths (0.3) of a mile apart, turned (for the second time) 15º to port side while the “Don Juan” veered hard to starboard . . . [But] “route observance” of the International Rules of the Road will not relieve a vessel from responsibility if the collision could have been avoided by proper care and skill on her part or even by a departure from the rules. In the petition at bar, the “Don Juan” having sighted the “Tacloban City” when it was still a long way off was negligent in failing to take early preventive action and in allowing the two (2) vessels to come to such close quarters as to render the collision inevitable when there was no necessity for passing so near to the “Tacloban City” as to create that hazard or inevitability, for the “Don Juan” could choose its own distance. It is noteworthy that the “Tacloban City,” upon turning hard to port shortly before the moment of collision, signalled its intention to do so by giving two (2) short blasts with its horn. The “Don Juan” gave no answering horn blast to signal its own intention and proceeded to turn hard to starboard.

We conclude that Capt. Santisteban and Negros Navigation are properly

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held liable for gross negligence in connection with the collision of the “Don Juan” and “Tacloban City” and the sinking of the “Don Juan’’ leading to the death of hundreds of passengers. Petitioner criticizes the lower court’s reliance on the Mecenas case, arguing that, although this case arose out of the same incident as that involved in Mecenas, the parties are different and trial was conducted separately. Petitioner contends that the decision in this case should be based on the allegations and defenses pleaded and evidence adduced in it or, in short, on the record of this case. The contention is without merit. What petitioner contends may be true with respect to the merits of the individual claims against petitioner but not as to the cause of the sinking of its ship on April 22, 1980 and its liability for such accident, of which there can only be one truth. Otherwise, one would be subscribing to the sophistry: truth on one side of the Pyrenees, falsehood on the other! BENGUET ELECTRIC COOPERATIVE, INC. vs. COURT OF APPEALS, ET AL. G.R. No. 127326, December 23, 1999 This case involves a review on certiorari of the Decision of the Court of Appeals affirming with modification the decision of the Regional Trial Court of Baguio City, and ordering petitioner Benguet Electric Cooperative, Inc. (BENECO) to pay Caridad O. Bernardo, as guardian ad litem of the three (3) minor children of the late Jose Bernardo P50,000.00 as indemnity for his death, with interest thereon at the legal rate from February 6, 1985, the date of the filing of the complaint, until fully paid, P100,000.00 for moral damages, P20,000.00 for exemplary damages, another P20,000.00 for attorney’s fees, P864,000.00 for net income loss for the remaining thirty (30) years of the life expectancy of the deceased, and to pay the costs of suit. The appellate court dismissed for lack of merit the counterclaim of BENECO against the Bernardos and its third party complaint against Guillermo Canave, Jr., as well as the latter’s counterclaim. For five (5) years up to the time of his death, Jose Bernardo managed a stall at the Baguio City meat market. On 14 January 1985 at around 7:50 in the morning, Jose, together with other meat vendors went out of their stalls to meet a jeepney loaded with slaughtered pigs in order to select the meat they would sell for the day. Jose was the very first to reach the parked jeepney. Grasping the handlebars at the rear entrance of the vehicle, and as he was about to raise his right foot to get inside, Jose suddenly stiffened and trembled as though suffering from an epileptic seizure. Romeo Pimienta who saw Jose thought he was merely joking but noticed almost in disbelief that he was already turning black. In no time the other vendors rushed to Jose and they discovered that the antenna of the jeepney bearing the pigs had gotten entangled with an open electric wire at the top of the roof of a meat

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stall. Pimienta quickly got hold of a broom and pried the antenna loose from the open wire. But shortly after, Jose released his hold on the handlebars of the jeep only to slump to the ground. He died shortly in the hospital. Cause of his death was “cardio-respiratory arrest secondary to massive brain congestion with petheccial hemorrhage, brain bilateral pulmonary edema and congestion and endocardial petecchial hemorrhage and dilation (history of electrocution).” On 6 February 1985, Caridad O. Bernardo, widow of Jose Bernardo, and their minor children, Jojo, Jeffrey and Jo-an, all surnamed Bernardo, filed a complaint against BENECO before the Regional Trial Court of Baguio City for a sum of money and damages arising from the electrocution of Jose Bernardo. In the same civil action, BENECO filed a third-party complaint against Guillermo Canave, Jr., the jeepney owner. In its decision dated 15 August 1994, the trial court ruled in favor of the Bernardos and ordered BENECO to pay them damages. Both petitioner and private respondents herein appealed to the Court of Appeals. On 5 November 1996 the appellate court promulgated its Decision which BENECO now assails contending inter alia that the appellate court gravely erred in ordering BENECO to pay damages in light of the clear evidence that it was third-party defendant Canave’s fault or negligence which was the proximate and sole cause, or at least the principal cause, of the electrocution and death of Jose Bernardo. First, BENECO questions the award of damages by respondent court notwithstanding a clear showing that the electrocution and death of Jose Bernardo were directly attributable to the fault and negligence of jeepney owner Guillermo Canave, Jr. The records of the case show that respondent court did not commit any reversible error in affirming the findings of the trial court that BENECO was solely responsible for the untimely death of Jose Bernardo through accidental electrocution. According to the trial court, which we find substantiated by the records. Through Virgilio Cerezo, a registered master electrician and presently the Chief Electrical Building Inspector of the General Services Division of the City of Baguio, who was tasked to investigate the electrocution of Bernardo, the plaintiffs adduced proof tending to show that the defendant BENECO installed a No. 2 high voltage main wire distribution line and a No. 6 service line to provide power at the temporary meat market on Hilltop Road. It put up a three-inch G.I. pipe pole to which the No. 2 main line was strung on top of a stall where a service drop line was connected. The height of the electrical connection from the No. 2 line to the service line was barely eight (8) to nine (9) feet (Exhibit “E”; See Exhibit “D-1”) which is in violation of the Philippine Electrical Code which requires a minimum vertical clearance of fourteen (14) feet from the level of the ground since the wiring crosses a public street. Another violation according to Cerezo, is that the main line connected to the service line was not of rigid conduit wiring but totally exposed

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without any safety protection. (ibid.). Worse, the open wire connections were not insulated (ibid.); (See Exhibits “D-6,” “D-6-A,” “D-7”). The jeep’s antenna which was more than eight (8) feet high (Exhibit “D-9”) from the ground (It is about six to seven feet long and mounted on the left fender which is about three feet above the ground) got entangled with the open wire connections (Exhibit “D-8”), thereby electrically charging its handlebars which Bernardo held on to enter the vehicle resulting in his electrocution. While Vedasto Augusto, an electrical engineer and the line superintendent in the electrical department of the defendant BENECO, admitted that the allowable vertical clearance of the service drop line is even 15 feet from the ground level and not only 14 feet, he and Jose Angeles, then an instrument man or surveyor of the BENECO, insisted that BENECO installed (they do not know by whom in particular) from the Apollo Building nearby a service drop line carrying 220 volts which was attached to a G.I. pipe pole (Exhibits “1” and “1-A”). The vertical clearance of the point of attachment of the service drop line on the G.I. post to the ground is 15.5 feet (Exhibit “1B”), which is more than the allowable 15-foot clearance. To this service drop line was connected the service entrance conductor (Exhibit “1-D”) to supply power inside the premises to be serviced through an electric meter. At the lower portion of the splicing or connecting point between the service drop line and the service entrance conductor is a three to four-inch bare wire to serve as a ground. They saw the bare wire because the splicing point was exposed as it was not covered with tape (Exhibit “1-E”). The antenna of the jeep which electrocuted Bernardo got entangled with this exposed splicing point. Augusto claimed that it was not BENECO’s job to splice or connect the service entrance conductor to the service drop line but rather the owner of the premises to be serviced whose identity they did not, however, determine. Significantly, on cross-examination, Augusto admitted that the service drop line that BENECO installed did not end at the point to which it is attached to the G.I. post. Rather, it passed through a spool insulator that is attached to the post (Exhibit “1-F”) and extended down to where the service entrance conductor is spliced with the result that the exposed splicing point (Exhibit “1-E”) is only about eight (8) feet from the ground level. There is no question that as an electric cooperative holding the exclusive franchise in supplying electric power to the towns of Benguet province, its primordial concern is not only to distribute electricity to its subscribers but also to ensure the safety of the public by the proper maintenance and upkeep of its facilities. It is clear to us then that BENECO was grossly negligent in leaving unprotected and uninsulated the splicing point between the service drop line and the service entrance conductor, which connection was only eight (8) feet from the ground level, in violation of the Philippine Electrical Code. BENECO’s contention that the accident happened only on January 14, 1985, around seven (7) years after the open wire was found existing in 1978, far from mitigating its culpability, betrays its gross neglect in performing its duty to the public. By leaving an open live wire unattended for years, BENECO

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demonstrated its utter disregard for the safety of the public. Indeed, Jose Bernardo’s death was an accident that was bound to happen in view of the gross negligence of BENECO. BENECO theorizes in its defense that the death of Jose Bernardo could be attributed to the negligence of Canave, Jr., in parking his jeepney so close to the market stall which was neither a parking area nor a loading area, with his antenna so high as to get entangled with an open wire above the Dimasupil store. But this line of defense must be discarded. Canave’s act of parking in an area not customarily used for that purpose was by no means the independent negligent act adverted to by BENECO in citing Manila Electric Co. vs. Ronquillo. Canave was well within his right to park the vehicle in the said area where there was no showing that any municipal law or ordinance was violated nor that there was any foreseeable danger posed by his act. One thing however is sure, no accident would have happened had BENECO installed the connections in accordance with the prescribed vertical clearance of fifteen (15) feet.

8.

PROOF OF NEGLIGENCE

A.

BURDEN OF PROOF.

Section 1 of Rule 131 of the Revised Rule Court defines burden of proof as the duty of a party to present evidence on the facts in issue necessary to establish his claim or defenses by the amount of evidence required by law. It is up for the plaintiff to establish his cause of action or the defendant to establish his defense. Thus, if the plaintiff alleged in his complaint that he was damaged because of the negligent acts of the defendant, the plaintiff has the burden of proving such negligence. (Taylor vs. Mla Electric Railroad supra, citing Scaevola, Jurisprudencia del Codigo Civil, vol. 6, pp. 551, 552). It is even presumed that a person takes ordinary care of his concerns. (Sec. 3[d], Rule 131). The quantum of proof required is preponderance of evidence. (Sec.1, Rule 133, Revised Rules of Court). The rule, however, admits of certain exceptions. There are exceptional cases when the rules or the laws provide for cases when negligence is presumed.

B. PRESUMPTIONS.

The Civil Code provides for the following cases when the existence of negligence is presumed. “Art. 2184. x x x It is disputably presumed that a driver was negligent, if he had been found guilty of reckless driving or

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violating traffic regulations at least twice within the next preceding two months. x x x Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of the mishap, he was violating any traffic regulation.

x x x

x x x

xxx

“Art. 2188. There is prima facie presumption of negligence on the part of the defendant if the death or injury results from his possession of dangerous weapons or substances, such as firearms and poison, except when the possession or use thereof is indispensable in his occupation or business.’’

It should be noted, however, that the party invoking such presumption must still establish certain preconditions before the presumption can operate. Thus, Article 2185 requires proof that there was a violation of a traffic regulation while Article 2188 requires proof of possession of dangerous weapons or substances, such as firearms and poison. Presumption of negligence may also arise because of certain contractual relationship between the parties. Thus, the Civil Code provides for a presumption of negligence in case a passenger was injured in an accident involving his carrier. (Article 1735, Civil Code).

C.

RES IPSA LOQUITUR.

Another rule which is relied upon in negligence cases is the doctrine of res ipsa loquitur – the thing speaks for itself. Its function is to aid the plaintiff in proving the elements of a negligence case by circ*mstantial evidence. (Epstein, p. 294). The doctrine was restated in Layugan vs. Intermediate Appellate Court (167 SCRA 376, cited in MA-AO Sugar Central Co., Inc., et al. vs. Hon. Court of Appeals, et al., G.R. No. 83491, August 27, 1990) thus: “Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.” The requisites for the application of the doctrine were enumerated in Rogelio Ramos v. Court of Appeals, et al. (G.R. No. 124354, December 29, 1999) as follows: 1. The accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;

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2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the “control of the instrumentality” which caused the damage. Such element of control must be shown to be within the dominion of the defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or damage; must show a situation where it is applicable, and must establish that the essential elements of the doctrine were present in a particular incident. (ibid.)

The Supreme Court explained the nature of the rule in Layugan v. Intermediate Appellate Court (supra.): The doctrine of Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The rule, when applicable to the facts and circ*mstances of a particular case, is not intended to and does not dispense with the requirement of proof of culpable negligence on the part of the party charged. It merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circ*mstances involved, direct evidence is absent and not readily available. Hence, it has generally been held that the presumption of inference arising from the doctrine cannot be availed of, or is overcome, where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury complained of or where there is direct evidence as to the precise cause of the accident and all the facts and circ*mstances attendant on the occurrence clearly appear. Finally, once the actual cause of injury is established beyond controversy, whether by the plaintiff or by the defendant, no presumptions will be involved and the doctrine becomes inapplicable when the circ*mstances have been so completely elucidated that no inference of defendant’s liability can reasonably be made, whatever the source of the evidence, as in this case.”

The Supreme Court further explained the doctrine in Rogelio Ramos, et al. vs. Court of Appeals, et al. (supra.): Res ipsa loquitur is a Latin phrase which literally means “the thing or the transaction speaks for itself.” The phrase “res ipsa loquitur” is a maxim for the rule that the fact of the occur-

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rence of an injury, taken with the surrounding circ*mstances, may permit an inference or raise a presumption of negligence, or make out a plaintiff’s prima facie case, and present a question of fact for defendant to meet with an explanation. Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from or was caused by the defendant’s want of care. xxx However, much has been said the res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode of proof, of a mere procedural convenience since it furnishes a substitute for, and relieves a plaintiff of, the burden of producing specific proof of negligence. In other words, mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof, permitting the plaintiff to present along with the proof of the accident, enough of the attending circ*mstances to invoke the doctrine, creating an inference or presumption of negligence, and to thereby place on the defendant the burden of going forward with the proof.

a. Rationale.

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of common knowledge and experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge (Rogelio Ramos, et al. vs. Court of Appeals, et al., ibid.) Another theoretical basis for the doctrine is its necessity, i.e., that necessary evidence is absent or not available. The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is com-

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pelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. The inference which the doctrine permits is grounded upon the fact that the chief evidence of the true cause, whether culpable or innocent, is practically accessible to the defendant but inaccessible to the injured person (D.M. Consunji, Inc. v. Court of Appeals, G.R. No. 137873, April 20, 2001, 357 SCRA 249, 258). It has been said that the doctrine of res ipsa loquitur furnishes a bridge by which a plaintiff, without knowledge of the cause, reaches over to defendant who knows or should know the cause, for any explanation of care exercised by the defendant in respect of the matter of which the plaintiff complains. The res ipsa loquitur doctrine is a rule of necessity, in that it proceeds on the theory that under the peculiar circ*mstances in which the doctrine is applicable, it is within the power of the defendant to show that there was no negligence on his part, and direct proof of defendant’s negligence is beyond plaintiff’s power. Accordingly, some courts add to the three prerequisites for the application of the res ipsa loquitur doctrine the further requirement that for the res ipsa loquitur doctrine to apply, it must appear that the injured party had no knowledge or means of knowledge as to the cause of the accident, or that the party to be charged with negligence has superior knowledge or opportunity for explanation of the accident (D.M. Consunji v. Court of Appeals, ibid., at pp. 258-259).

b. Cases when the doctrine was applied.

In Africa vs. Caltex (Phil.), Inc. (G.R. No. L-12986, March 31, 1966, 16 SCRA 448 [1966]), the Supreme Court applied the doctrine of res ipsa loquitur and adjudged defendant Caltex liable for the damage done to the property of its neighbor when fire broke out in a Caltex service station while gasoline from a tank truck was being unloaded into an underground storage tank through a hose and the fire spread to and burned neighboring houses. The principle applies with equal force because the gasoline station, with all its appliances, equipment and employees, was under the control of the defendant. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were the defendant and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. The Supreme Court cited a strikingly similar case of Jones vs. Shell Petroleum Corporation, et al. (171 So. 447):

“Arthur O. Jones is the owner of a building in the city of

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Hammon which in the year 1934 was leased to the Shell Petroleum Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease, while gasoline was being transferred, from the tank wagon, also operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire started with resulting damages to the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the testimony, concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty any negligence on the part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which was granted, and the case is now before us for decision.” In resolving the issue of negligence, the Supreme Court of Louisiana held: “Plaintiff’s petition contains two distinct charges of negligence — one relating to the cause of the fire and the other relating to the spreading of the gasoline about the filling station. “Other than an expert to assess the damages caused plaintiff’s building by the fire, no witnesses were placed on the stand by the defendant. “Taking up plaintiff’s charge of negligence relating to the cause of the fire, we find it established by the record that the filling station and the tank truck were under the control of the defendant and operated by its agents or employees. We further find from the uncontradicted testimony of plaintiff’s witnesses that fire started in the underground tank attached to the filling station while it was being filled from the tank truck and while both the tank and the truck were in charge of and being operated by the agents or employees of the defendant, extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and escaping gasoline to the building owned by the plaintiff. Predicated on these circ*mstances and the further circ*mstance of defendant’s failure to explain the cause of the fire or to show its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine may be successfully invoked and this, we think, is one of them. Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants

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and the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care. (45 C.J. 768, p. 1193). “This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. Some of the cases in this jurisdiction in which the doctrine has been applied are the following, viz.; Maus vs. Broderick, 51 La. Ann. 1153, 25 So. 977; Hebert vs. Lake Charles Ice etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis vs. Vicksburg, etc., R. Co., 115 La. 53, 38 So. 892; Bents vs. Page, 115 La. 560, 39 So. 599.”

Similarly, the Supreme Court applied the doctrine in F.F. Cruz and Co., Inc. vs. The Court of Appeals, et al. (G.R. No. L-52732, August 29, 1988), an action for damages on the property of the plaintiff which was destroyed because of the fire that started in and razed the furniture manufacturing shop of the defendant. The furniture manufacturing shop of defendant in Caloocan City was situated adjacent to the residence of respondent. Sometime in August 1971, the plaintiff first approached the defendant’s plant manager, to request that a firewall be constructed between the shop and plaintiff’s residence. The request was repeated several times but they fell on deaf ears. In the early morning of September 6, 1974, fire broke out in defendant’s shop. Defendant’s employees, who slept in the shop premises, tried to put out the fire, but their efforts proved futile. The fire spread to plaintiff’s house. Both the shop and the house were razed to the ground. The cause of the conflagration was never discovered. The National Bureau of Investigation found specimens from the burned structures negative for the presence of inflammable substances. The facts of the case likewise called for the application of the doctrine considering that in the normal course of operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon. The doctrine was applied in Republic of the Philippines vs. Luzon Stevedoring Corp. (G.R. No. L-21749, September 29, 1967) which was decided under the following factual background: “In the early afternoon of August 17, 1960, barge L-1892, owned by the Luzon Stevedoring Corporation was being towed down the Pasig river by tugboats “Bangus” and “Barbero,” also belonging to the same corporation, when the barge rammed against one of the wooden piles of the

NEGLIGENCE

Nagtahan bailey bridge, smashing the posts and causing the bridge to list. The river, at the time, was swollen and the current swift, on account of the heavy downpour in Manila and the surrounding provinces on August 15 and 16, 1960.” The Court made an inference of negligence ruling that: “As to the first question considering that the Nagtahan bridge was an immovable and stationary object and uncontrovertedly provided with adequate openings for the passage of water craft, including barges like that of appellant’s, it is undeniable that the unusual event that the barge, exclusively controlled by appellant, rammed the bridge supports raises a presumption of negligence on the part of appellant or its employees manning the barge or the tugs that towed it. For in the ordinary course of events, such a thing does not happen if proper care is used. In Anglo-American Jurisprudence, the inference arises by what is known as the “res ipsa loquitur” rule. (Scott vs. London Docks, Co., 2 H & C 596; San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L. Ed., 680; Whitwell vs. Wolf, 127 Minn. 529, 149 N.W. 299; Bryne vs. Great Atlantic & Pacific Tea Co., 269 Mass. 130; 168 N.E. 540; Gribsby vs. Smith, 146 S.W. 2d 719).”

It should be noted that the ruling in Republic of the Philippines vs. Luzon Stevedoring Corporation is also supported by another evidentiary rule in American Jurisprudence that was explained by the Supreme Court in Far Eastern Shipping Company vs. Court of Appeals (297 SCRA 59). The rule is that there is a presumption of fault against a moving vessel that strikes a stationary object such as a dock or navigational aid. In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter. The moving vessel must show that it was without fault or that the collision was occasioned by the fault of the stationary object or was the result of inevitable accident. It has been held that such vessel must exhaust every reasonable opportunity which the circ*mstances admit and show that in each, they did all that reasonable care required. In absence of sufficient proof in rebuttal, the presumption of fault attaches to a moving vessel which collides with a fixed object and makes a prima facie case of fault against the vessel. The Supreme Court, quoting American jurisprudence, explained that logic and experience support this presumption: “The common sense behind the rule makes the burden a heavy one. Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way. It is not sufficient for the respondent to produce witnesses to testify that as soon as the danger became apparent everything

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possible was done to avoid the accident. The question remains, How then did the collision occur? The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur. (ibid., citing Patterson Oil Terminals vs. The Port Covington, 109 F. Supp. 953, 954 [E D Pa. 1952]).

In Batiquin vs. Court of Appeals (258 SCRA 334 [1996]), the Supreme Court applied the doctrine to a doctor who performed a simple caesarian section on the plaintiff. It appears that soon after leaving the hospital, the plaintiff suffered abdominal pains, complained of being feverish and lost her appetite. She consulted the defendant doctor who gave her medicines. Later, the plaintiff returned to work but abdominal pains kept on recurring. When the pains became unbearable, she went to another doctor who found that the plaintiff had infections in her uterus and ovaries. When she was operated on, a piece of rubber was found on the right side of her uterus which could have been a torn section of a surgeon’s glove. The Supreme Court ruled that all the requisites for recourse to the doctrine of res ipsa loquitur are present. “First, the entire proceedings of the caesarian section were under the exclusive control of Dr. Batiquin (defendant). In this light, the (plaintiffs) were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into (plaintiff) Villegas’s body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the caesarian section, (plaintiff) underwent no other operation which could have caused the offending piece of rubber to appear in the uterus, it stands to reason that such could only have been a by-product of the caesarian section performed by (defendant). The (defendants), in this regard, failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in (plaintiff’s) abdomen and for all the adverse effects thereof.” Similarly, the Court of Appeals found reason to apply the doctrine in Bernal vs. Alonzo (12 CAR [2s] 792.) because of the presence inside the peritonial cavity of a patient of a surgical gauze reported as missing after a ceasarian operation. (See more discussions regarding doctors in Chapter 3). Although the Supreme Court did not refer to it by name, the doctrine of res ipsa loquitur was, in effect, applied in Gotesco Investment Corporation vs. Chatto (210 SCRA 18, 28 [1992]). The plaintiffs therein were injured because the ceiling of a moviehouse where they

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were in collapsed. The owner of the moviehouse could not explain why the ceiling collapsed. The Supreme Court relied on the following explanation in Corpus Juris Secundum (Vol. 86, p. 718): “Where a patron of a theater or other place of public amusem*nt is injured, and the thing that caused the injury is wholly and exclusively under the control and management of the defendant, and the accident is such as in the ordinary course of events would not have happened if proper care had been exercised, its occurrence raises a presumption or permits an inference of negligence on the part of the defendant.”

In Cebu Shipyard and Engineering Works vs. William Lines, et al. (G.R. No. 132607, May 5, 1999), the Supreme Court sustained the application of the doctrine when one of the vessels of William Lines caught fire and sank while it was in the dockyard of the petitioner for annual dry-docking and repair. The Supreme Court ruled that all the requirements for the application of the doctrine were present. First, the fire that consumed the vessel would not have happened in the ordinary course of things if reasonable care and diligence had been exercised. Second, the agency charged with negligence was the petitioner that had control over the vessel when it was docked for annual repairs. The High Court also observed that the other responsible causes including the conduct of the plaintiff and third persons were sufficiently eliminated by evidence. The Supreme Court sustained the finding of the Court of Appeals in D.M. Consunji v. Court of Appeal (supra.) that the doctrine was applicable to a case where the private respondent’s husband fell down from the 14th floor of a building to the basem*nt while he was working in petitioner’s construction project, resulting in his death. The construction site was within the exclusive control and management of petitioner. It has a safety engineer, a project superintendent, a carpenter leadman and others who were in complete control of the situation therein. The circ*mstances of any accident that would occur therein were peculiarly within the knowledge of the petitioner or its employees. On the other hand, the private respondent widow was not in a position to know what caused the accident. No worker is going to fall from the 14th floor of a building to the basem*nt while performing work in a construction site unless someone is negligent; thus, the first requisite for the application of the rule of res ipsa loquitur was present. The construction site with all its paraphernalia and human resources that likely caused the injury was under the exclusive control and management of appellant; thus, the second requisite was also present. No contributory negligence was attributed to the private respondent’s deceased husband; thus, the last requisite

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was also present. Ludo and Luym Corporation v. Court of Appeals (G.R. No. 125483, February 1, 2001, 351 SCRA 35) involved the private wharf belonging to the petitioner that was used by vessels for loading and unloading copra and other processed products. Among the wharf’s facilities are fender pile clusters for docking and mooring. It was established that while a vessel belonging to the private respondent was docking at petitioner’s wharf, it rammed and destroyed a fender pile cluster. It was ruled in the said case that all the requisites for recourse to the doctrine of res ipsa loquitur exist because the vessel was under the exclusive control of its officers and crew. Petitioner did not have direct evidence on what transpired within as the officer and crew maneuvered the vessel to its berthing place. No other possible cause of the damage was likewise established.

c.

Cases when doctrine was held inapplicable.

The facts in the above-cited Layugan case, which did not warrant the application of the doctrine are as follows: On May 15, 1979 while at Baretbet, Bagabag, Nueva Vizcaya, the plaintiff and a companion were repairing the tire of their cargo truck which was parked along the right side of the National Highway. Defendant’s truck, driven recklessly by Daniel Serrano bumped the plaintiff and as a result, plaintiff was injured and hospitalized. It was established during the trial that an early warning device in the form of a lighted kerosene lamp was placed by the plaintiff at the back of his truck. The defendant argued, however, that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which has the right to be on the highway. The defendant posited that the burden of proving that care and diligence was observed is shifted to the plaintiff, for, as previously claimed, his Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. The absence of such proof of care, defendant concluded, would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, who was fixing the flat tire of said truck. The Supreme Court ruled that the doctrine was inapplicable because there was sufficient proof that the plaintiff exercised due care by sufficiently placing an early warning device. But despite this warning, the Isuzu truck driven by Daniel Serrano, an employee of the defendant, still bumped the rear of the parked cargo truck. In other words, the doctrine of res ipsa loquitur is not applicable if there is direct proof of absence or presence of negligence. As early as 1910, the Supreme Court already explained that the doctrine merely

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creates a prima facie case, and applies only in the absence of proof of the circ*mstances under which the act complained of was performed. It is something invoked in favor of the plaintiff in the absence of proof. If there is sufficient proof showing the conditions and circ*mstances under which the injury occurred, the creative reason for the doctrine of res ipsa loquitur disappears. (S.D. Martinez, et al. vs. William Van Buskirk, G.R. No. L-5691, December 27, 1910). The doctrine is also inapplicable if other causes, including the conduct of the plaintiff and third persons, are not sufficiently eliminated by the evidence. It is not applicable when an unexplained accident may be attributable to one of several causes, for some of which the defendant could not be responsible (FGU Insurance Corporation v. G.P. Sarmiento Trucking Corporation and Lambert M. Eroles, G.R. No. 141910, August 6, 2002). Dra. Abdulia Rodriguez, et al. v. Court of Appeals, et al., (G.R. No. 121964, June 17, 1997, 273 SCRA 607) involved a quasi-delict case for damages filed by the owner and the lessees of apartment units that were destroyed by fire. It was alleged that the units were destroyed by reason of the gross negligence of the construction workers and employees of the defendants. Plaintiffs further alleged that because of such negligence, the bunkhouse or the worker’s quarters in the construction site at the back of the apartment units caught fire and spread rapidly to the neighboring buildings. The plaintiffs tried to pin the blame on the defendants by claiming that the doctrine of res ipsa loquitur should have been applied because the fire started in the generator in the bunkhouse. The Supreme Court rejected the argument because the allegation that the fire started in the generator and the bunkhouse was not established. Thus, the Court concluded that it was not established that the fire was caused by an instrumentality within the exclusive control of the defendants. In Wildvalley Shipping Co. v. Court of Appeals (G.R. No. 119602, October 6, 2000, 342 SCRA 213, 228), a vessel of the petitioner ran aground in the center of a channel blocking ingress and egress of other vessels. The allegation that the negligence of the master of the vessel is presumed because of the doctrine of res ipsa loquitur was rejected because it was not established that the vessel was in his control at that time. It was established that there was temporary shift from the master to a pilot on a compulsory pilotage. Hence, the second requisite — that the instrumentality that caused the damage was within the exclusive control of the defendant — was not established.

d. Culpa Contractual.

The Supreme Court explained in FGU Insurance Corporation v.

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G.P. Sarmiento Trucking Corporation (supra.) that the doctrine of res ipsa loquitur generally finds relevance whether or not a contractual relationship exists between the plaintiff and the defendant, for the inference of negligence arises from the circ*mstances and nature of the occurrence and not from the nature of the relation of the parties. Nevertheless, the requirement that responsible causes other than those due to defendant’s conduct must first be eliminated, for the doctrine to apply, should be understood as being confined only to cases of pure (non-contractual) tort since obviously the presumption of negligence in culpa contractual, as previously so pointed out, immediately attaches by a failure of the covenant or its tenor. CASES: ESPIRITU vs. PHILIPPINE POWER AND DEV. CO. C.A.-G.R. No. L-3240-R, September 20, 1949

The facts of that case are stated in the decision as follows:

“In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass between the municipalities of Bay and Calauan, in the province of Laguna, with clear weather and without any wind blowing, an electric transmission wire, installed and maintained by the defendant Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and one of the broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his body and caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and causing intense pain and wounds that were not completely healed when the case was tried on June 18, 1947, over one year after the mishap.” [The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence but the appellate court overruled the defense under the doctrine of res ipsa loquitur. The court said:] “The first point is directed against the sufficiency of plaintiff’s evidence to place appellant on its defense. While it is the rule, as contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to establish that the proximate cause of his injury was the negligence of the defendant, it is also a recognized principle that ‘Where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if those having such control use proper care, it affords reasonable evidence, in the absence of the explanation

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that the injury arose from defendant’s want of care.’ “And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San Juan Light & Transit Co. vs. Requena, 224 U.S. 89, 56 L. ed. 68). This rule is known by the name of res ipsa loquitur (the transaction speaks for itself), and is peculiarly applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be on the highway, and the electric wire was under the sole control of defendant company. In the ordinary course of events, electric wires do not part suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to injure passersby unless someone was negligent. (Byrne vs. Boadle, 2 H & Co. 22; 159 Eng. Reprint 299, the leading case that established that rule). Consequently, in the absence of contributory negligence (which is admittedly not present) the fact that the wire snapped suffices to raise a reasonable presumption of negligence in the installation, care and maintenance. Thereafter, as observed by Chief Baron Pollock, if there are any facts inconsistent with negligence, it is for the defendant to prove.” RADIO COMMUNICATIONS OF THE PHILS., INC. (RCPI) vs. COURT OF APPEALS, et al. G.R. No. L-44748, August 29, 1986 PARAS, J.: Before Us, is a Petition for Review by certiorari of the decision of the Court of Appeals, modifying the decision of the trial court in a civil case for recovery of damages against petitioner corporation by reducing the award to private respondent Loreto Dionela of moral damages from P40,000 to P15,000, and attorney’s fees from P3,000 to P2,000. The basis of the complaint against the defendant corporation is a telegram sent through its Manila Office to the offended party, Loreto Dionela, reading as follows:

“176 AS JR 1215 PM 9 PAID

MANDALUYONG JUL 22-66

LORETO DIONELA

CABANGAN LEGASPI CITY.

WIRE ARRIVAL OF CHECK

FER. LORETO DIONELA — CABANGAN — WIRE ARRIVAL OF CHECK-PER. 115 PM. SA IYO WALANG PAKINABANG DUMATING — KA DIYAN — WALA KANG PADALA DITO — KAHIT BULBULMO” (p. 19, Annex “A”)

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Plaintiff-respondent Loreto Dionela alleges that the defamatory words on the telegram sent to him not only wounded his feelings but also caused him undue embarrassment and affected adversely his business as well because other people have come to know of said defamatory words. Defendantcorporation as a defense, alleges that the additional words in Tagalog was a private joke between the sending and receiving operators and that they were not addressed to or intended for plaintiff and therefore did not form part of the telegram and that the Tagalog words are not defamatory. The telegram sent through its facilities was received in its station at Legaspi City. Nobody other than the operator manned the teletype machine which automatically receives telegrams being transmitted. The said telegram was detached from the machine and placed inside a sealed envelope and delivered to plaintiff, obviously as is. The additional words in Tagalog were never noticed and were included in the telegram when delivered. xxx Petitioner’s contentions do not merit our consideration. The action for damages was filed in the lower court directly against respondent corporation not as an employer subsidiarily liable under the provisions of Article 1161 of the New Civil Code in relation to Art. 103 of the Revised Penal Code. The cause of action of the private respondent is based on Arts. 19 and 20 of the New Civil Code. (supra). As well as on respondent’s breach of contract thru the negligence of its own employees. Petitioner is a domestic corporation engaged in the business of receiving and transmitting messages. Everytime a person transmits a message through the facilities of the petitioner, a contract is entered into. Upon receipt of the rate or fee fixed, the petitioner undertakes to transmit the message accurately. There is no question that in the case at bar, libelous matters were included in the message transmitted, without the consent or knowledge of the sender. There is a clear case of breach of contract by the petitioner in adding extraneous and libelous matters in the message sent to the private respondent. As a corporation, the petitioner can act only through its employees. Hence, the acts of its employees in receiving and transmitting messages are the acts of the petitioner. To hold that the petitioner is not liable directly for the acts of its employees in the pursuit of petitioner’s business is to deprive the general public availing of the services of the petitioner of an effective and adequate remedy. In most cases, negligence must be proved in order that plaintiff may recover. However, since negligence may be hard to substantiate in some cases, we may apply the doctrine of RES IPSA LOQUITUR (the thing speaks for itself), by considering the presence of facts or circ*mstances surrounding the injury.”

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CHAPTER 3

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES This chapter is an extension of the preceding chapter on negligence. It deals with the nature of the activity, the expertise of the actor and the effects thereof on the determination of negligence. Thus, the present chapter includes a discussion of certain specialized activities or profession like banking, common carriage, doctors and lawyers. We will also turn our attention to various affirmative duties imposed by law on certain actors. These include affirmative duties that are imposed because of the public interest involved or the special relationship between certain individuals, particularly employeremployee relationship. These also include affirmative duties that become legal duties because they refer to principles of social conduct so universally recognized as to be demanded that they be observed as a legal duty. (L.S. Ayers & Co. vs. Hicks, 220 Ind. 86, 40 N.E. 2d 334 [Indiana] 1942). There are also affirmative duties that are imposed by law or jurisprudence that are considered in some jurisdiction as purely moral obligation. Generally, the law does not impose or require performance of moral obligations. No duty to perform such obligation is imposed nor is there an affirmative duty to perform an act for the benefit of another. However, it has been observed by Justice Cardozo that more and more, moral obligations are “annexed to the domain of justice, and is incorporated into the jural norm.” (Benjamin Nathan Cardozo, Paradoxes of Legal Science). Justice Cardozo further observed: “Whenever a relation between human beings becomes organized into one that is specifically jural, the duties attached to it by law are assimilated more and more to those attached to it by morals. The law will not command the rich to give alms to the indigent. On occasion, nonetheless, it will impose restraints upon power taking advantage of necessity. The law will not enforce a duty of kindness to a neighbor. It will enforce a duty of kindness 154

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

to wife or child or pupil. Observe, however, that relations, once so vague and unorganized and definite with the result that thereafter rights and duties will belong to them. A new relation may be established, or at times an existing one extended. For many years, there was stress upon a relation known as privity. In default of that connecting bond, there were times when the law would not recognize duties that were recognized in morals. Decisions of recent date have made the bond of diminishing importance, and have broadened the relations to one’s fellows from which duties are engendered. The scope of legal duty has expanded in obedience to the urge of morals. We see the same urge in decisions that charge less. We see it in the inroad made by recent cases upon the concept of an infant’s disability where injustice would be wrought if the concept were maintained in all its rigorous simplicity. We see it in a tendency, still almost in embryo, and yet perceptible, to enlarge the duties owing to licensees and even trespassers by a gradual extension of the class of invitees. We see it in the striking growth of the concept of duress, a concept broad enough today to supply a remedy against unfairness and oppression in forms long ranked as guiltless. At times, indeed, the movement has been helped by legislation. x x x” (ibid.)

1.

DUTY TO RESCUE

A. DUTY TO THE RESCUER. Rousseau believes that we have “an innate repugnance at seeing a fellow creature suffer.” He said that “it is this compassion that hurries us without reflection to the relief of those who are in distress.” (Rousseau, Discourse on the Origin of Inequality, pp. 73 and 76). Cicero, the great Roman lawyer-statesman-philosopher, observed: Hominis enim ad deos nulla re propius accedut quam salutem hominibus dando — In nothing are men more like gods than in coming to the rescue of their fellow men. In consideration of such nature of man, courts make defendants liable for the injuries to persons who rescue people in distress because of the acts or omission of the said defendants. Courts reject the arguments of defendants that they are not liable because the rescuers are not foreseeable. In Wagner vs. International Ry. Co. (232 N.Y. 176 [1921]), Justice Cardozo rejected the argument of the defendant that rescue is at the peril of the rescuer, unless spontaneous and immediate. Justice Cardozo explained that there is liability to the rescuer and the law does not discriminate between the rescuer oblivious of the peril and the one who counts the costs. It is enough that the act, whether impulsive

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or deliberate, is the child of the occasion. He further explained: “Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperiled victim; it is wrong also to his rescuer. The state that leaves an opening in a bridge is liable to the child that falls into the stream, but liable also to the parent who plunges to its aid . . . The railroad company whose train approaches without signal is a wrongdoer toward the traveler surprised between the rails, but a wrongdoer also to the bystander who drags him from the path. . . . The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had . . .”

In this jurisdiction, the liability to a rescuer was recognized in Santiago vs. De Leon (CA-G.R. No. 16180-R, March 21, 1960, 7 Velayo’s Digest 569) where it was held that one who was hurt while trying to rescue another who was injured through negligence may recover damages. The case involved the negligence of an electric company in not repairing or reconnecting a live wire that was cut and was hanging. It appears that the owner of the house went to the office of the electric company to request for reconnection. The delay of the company in coping with the emergency reported to them was considered conclusive evidence of negligence. In the meantime, a boy was electrocuted by the live wire. On the other hand, the plaintiff realizing that the boy had been electrocuted, took off his wooden shoes and with it stuck the wire away in his desire to save the boy. Unfortunately, when the wire was released from underneath the boy’s body, the wire coiled around the plaintiff’s leg. The Court of Appeals awarded damages in favor of the plaintiff and rejected that argument of the defendant that the plaintiff tried to effect the rescue. The Court observed that to act immediately was the pressing need of the moment and to be unduly cautious would have been fatal to the boy. The Court applied the following observation in Corpus Juris Secundum (65 CJS 736-737): “x x x conduct which might otherwise be considered contributory negligence may not be so considered where a person is injured in attempting to save others from imminent danger of personal injury or death x x x. Persons are held justified in assuming greater risks in the protection of human life where

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they would not be under other circ*mstances. One is not guilty of contributory negligence in exposing himself to the danger of injury or death, if, under the same or similar circ*mstances, an ordinarily prudent person might so expose himself, or, as often expressed, if the act of intervention is not performed under such circ*mstances as would make it rash or reckless in the judgment of ordinarily prudent persons. This is true even though the persons attempting the rescue knows that it involves great hazard to himself without certainty of accomplishing the attempting rescue and even though in attempting such rescue he thereby imperils his own life. In determining whether one making or attempting such rescue exercised ordinary care, all the surrounding circ*mstances are to be considered including the existing emergency, the alarm, excitement and confusion usually present, the uncertainty as to the means to be employed, the necessity for immediate action, and the liability to err in the choice of the best course of action to pursue.”

B. DUTY TO RESCUE. The other side of this issue is the question of liability on the part of persons who should have acted in a manner that is consistent with man’s natural compassion. The question is: Is a person who did not rescue another who is in distress liable to the latter? Is there a general duty to rescue? No such duty to rescue is recognized in common law. Thus, Justice Carpenter observed in Buch vs. Amory Manufacturing Co. (44 A. 809 N.H. 1897): “There is a wide difference — a broad gulf — both in reason and in law, between causing and preventing injury; between doing by negligence or otherwise wrong to one’s neighbor, and preventing him from injuring himself; between protecting him against injury by another and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking and exepting certain intimate relations in the nature of trust, moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger and does not warn or forcibly restrain him? What difference does it make whether the danger is on another’s land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A sees an eight-year-old boy beginning to climb into his garden over a wall stuck with spikes and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? I see my neighbor’s

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two-year-old-babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by common law, or under the statute (P.S., c. 278, s. 8), because the child and I are strangers, and I am under no legal duty to protect him. x x x”

A legal writer argued that “once one decides that as a matter of statutory or common law duty, an individual is required under some circ*mstances to act at his own costs for the exclusive benefit of another, then it is very hard to set out in a principled manner the limits of social interference with individual liberty.” (Epstein, A Theory of Strict Liability, 2 J. Legal Stud., 151, 198-199). In the Philippines, there is also no general duty to rescue. A person is not liable for quasi-delict even if he did not help a person in distress. However, a limited duty to rescue is imposed and abandonment of helpless persons is considered, under certain circ*mstances, as a crime against security under Article 275 of the Revised Penal Code. The Revised Penal Code provides: “Art. 275. Abandonment of persons in danger and abandonment of one’s own victim. — The penalty of arresto mayor shall be imposed upon: 1. Anyone who shall fail to render assistance to any person whom he shall find in an uninhabited place wounded or in danger of dying, when he can render such assistance without detriment to himself, unless such omission shall constitute a more serious offense; 2. Anyone who shall fail to help or render assistance to another whom he has accidentally wounded or injured; 3. Anyone who, having found an abandoned child under seven years of age, shall fail to deliver said child to the authorities or to his family, or shall fail to take him to a safe place.

In all the cases contemplated by the above-quoted provision, there is an affirmative duty to act in favor of another person. In the second paragraph, the person who injured another did not commit a crime because the injury was caused accidentally. Thus, if there was intent to injure the person who was abandoned, the actor is guilty of the appropriate crime like serious physical injury or homicide as the case may be. The Land Transportation and Traffic Code (Republic Act No. 4136) contains a similar provision. It requires a person who injured another in a vehicular accident to help the victim unless he is excused

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from doing so. Thus, Section 55 provides:

“Sec. 55. Duty of driver in case of accident. — x x x

No driver of a motor vehicle concerned in a vehicular accident shall leave the scene of the accident without aiding the victim, except under the following circ*mstances: 1. If he is in imminent danger of being seriously harmed by any person or persons by reason of the accident; 2. law; or

If he reports the accident to the nearest officer of the

3. victim.”

If he has to summon a physician or nurse to aid the

Of course, there are individuals who are required by law to take care another person. Hence, they are legally compelled to rescue the other person under their care or custody. These include parents with respect to their children or guardians with respect to their wards. 2.

OWNERS, PROPRIETORS and POSSESSORS

Article 428 of the New Civil Code provides that the owner has the right to enjoy, dispose of and recover his property. Generally, the owner is not liable to any person who might be damaged if he is merely exercising his right as such. (Custodio vs. Court of Appeals, 253 SCRA 483). Damage to any person resulting from the exercise of any of the rights of ownership is damage without injury — damnum absque injuria. It can even be argued that no negligence is committed by the owner even if he carelessly caused damage by the exercise of his right because no duty of care is owed to anybody. A. TRESPASSERS. Consistently, the owner has no duty to take reasonable care towards a trespasser for his protection or even to protect him from concealed danger. The trespasser comes on to the premises at his own risk. (Taylor v. Manila Railroad Company, 16 Phil. 8; Robert Addie & Sons. [Collieries], Ltd. vs. Dumbreck [1929] A.C. 358). The owner has no duty to maintain his property in such a danger-free state just to prevent trespasser from being injured.

a. Tolerated Possession.

However, the owner is still liable if the plaintiff is inside his property by tolerance or by implied permission. In Rodrigueza vs.

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Manila Railroad Co., the plaintiffs’ houses were burned because a great quantity of sparks were negligently emitted from the smokestack of one of the defendant’s locomotive and fire was communicated to the said houses. The ground relied upon by the defendant in trying to evade liability to one of the plaintiffs, Remegio Rodri-gueza, was that the house of the said plaintiff stood partly within the limits of the land owned by the defendant company. It further appeared that, after the railroad track was laid, the company notified Rodrigueza to get his house off the land of the defendant and to remove it from its exposed position. Rodrigueza did not comply with this suggestion, though he promised to put an iron roof on his house, which he never did. Instead, he changed the materials of the main roof to nipa, leaving the kitchen and media aguas covered with cogon. It was contended by the defendant that it was not liable because Rodrigueza was a trespasser and therefore guilty of contributory negligence. The Supreme Court rejected the argument ruling that: “With respect to the case of Remigio Rodrigueza it is to be inferred that his house stood upon this ground before the Railroad Company laid its line over this course; and at any rate there is no proof that this plaintiff had unlawfully intruded upon the railroad company’s property in the act of building his house. What really occurred undoubtedly is that the company, upon making this extension, had acquired the land only, leaving the owner of the house free to remove it. Hence, he cannot be considered to have been a trespasser in the beginning. Rather, he was there at the sufferance of the defendant company, and so long as his house remained in this exposed position, he undoubtedly assumed the risk of any loss that might have resulted from fires occasioned by defendant’s locomotives if operated and managed with ordinary care. But he cannot be held to have assumed the risk of any damage that might result from the unlawful negligent acts of the defendant. Nobody is bound to anticipate and defend himself against the possible negligence of another. Rather he has a right to assume that the other will use the ordinary care of the ordinarily prudent man. (Philadelphia & Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97). In the situation now under consideration, the proximate and only cause of the damage that occurred was the negligent act of the defendant in causing the fire. The circ*mstance that Remigio Rodrigueza’s house was partly on the property of the defendant company and therefore in dangerous proximity to passing locomotives was an antecedent condition that may in fact have made the disaster possible, but that circ*mstance cannot be imputed to him as contributory negligence destructive of his right of action, because, first, that condition was not created by himself; secondly, because his house remained on this ground

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by the toleration, and therefore with the consent of the Railroad Company; and thirdly, because even supposing the house to be improperly there, this fact would not justify the defendant in negligently destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U.S., 454; 23 L.ed., 356; Norfolk etc. Ry. Co. vs. Perro, 101 Vs. 345, 350).

b. Visitors.

Under the same line of reasoning, owners of buildings or premises owe a duty of care to visitors. (Cabigao vs. University of the East, CA G.R. No. 33554-R, August 24, 1973, 18 CAR 2s 827). The plaintiff in the Cabigao case sat on a concrete bench inside the Dental Building of defendant University while visiting a student therein. When the plaintiff moved over from the bench, one of its concrete legs fell upon the left foot of the plaintiff causing fracture thereto. The Court awarded damages in favor of the plaintiff. The Court rejected the argument that the plaintiff was a trespasser because the defendant’s Answer contains an admission that she was a visitor.

(1) Common Carriers.

The duty owed by owners or possessors to visitors are also imposed on common carriers. Common carriers may be held liable for negligence to persons who stay in their premises even if they are not passengers. It should be recalled by way of a background that the law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due regard for all circ*mstances (Article 1755, Civil Code; see also Section 5 of this Chapter). Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage (Dangwa Transportation Co., Inc. v. Court of Appeals, 202 SCRA 575). Thus, the petitioner was held liable for breach of contract in Light Rail Transit Authority (LRTA) et al. v. Marjorie Navidad, et al. (G.R. No. 145804, February 6, 2003) when a certain Nicanor Navidad died after he fell on the LRT tracks and was struck by a moving train which was coming in at the exact moment that Mr. Nividad fell from the platform. Mr. Navidad was treated as a passenger because he entered the LRT station after having purchased a “token” and he fell while he was on the platform waiting for a train. Thus, he was where he was supposed to be with the intention of boarding a train.

It is important that the person who purchases the ticket (or a

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“token” in the above referred case) from the carrier presents himself at the proper place and in a proper manner to be transported. Such person must have a bona fide intention to use the facilities of the carrier, possess sufficient fare with which to pay for his passage, and present himself to the carrier for transportation in the place and manner provided. If he does not do so, he will not be considered a passenger. (Jesusa Vda. de Nueca, et al. v. The Manila Rairoad Company, CA-G.R. No. 31731, January 30, 1968, 13 CAR2s 49). Nevertheless, the carrier may still be liable to non-passengers. The liability of operators of common carriers, like railroad companies, to persons other than passengers who come upon the premises of such companies may in general be said to be determined according to the general rules of negligence relating to the duties of the owners or occupiers of property generally to trespassers, licensees or invitees. A licensee is one who enters another’s premises either without invitation or purposes not connected with business conducted on the premises but with permission or tolerance. An invitee is one who is at a place upon invitation. In so far as railroad cases are concerned, the element of greatest significance in determining the liability of a railroad company to a licensee or invitee injured upon its premises seems to be whether the presence of the injured person was to have been anticipated. As to persons who are considered licensees or invitees, the carrier may be liable if said licensees or invitees are injured through the negligence of the carrier’s employees (ibid.). The liability is based on Article 2176 of the Civil Code and not based on contract. The duty to exercise the diligence of a reasonable man even extends to persons who are in the premises of the carrier under an implied invitation. The Court of Appeals explained in Nueca et al. v. Manila Railroad Company, et al. (ibid.) that the company is bound to anticipate the presence of persons on the track or right of way at any place where the public in any considerable number has openly, notoriously, constantly and habitually crossed over or traveled along a portion of the tracks or right of way other than in a highway crossing with the acquiescence of the railroad company. Acquiescence or consent may be presumed where the company has permitted the public to use its tracks or station for a long period of time. Such a use may be of such long standing that there may arise what amount to an implied invitation to use the premises with the attendant responsibility upon the company (ibid., at pp. 57-58). In above-cited Nueca, et al. v. Manila Railroad Company (ibid.), the Court of Appeals imposed liability based on quasi-delict on the railroad company after applying the doctrine of res ipsa loquitur based

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on the following established facts: (1) the deceased was walking or standing beside the baggage car of a train when it suddenly fell on its side, pinning him to death; (2) the train was under the complete control of the railroad company at the time of the accident; (3) that if the said train had been properly operated, the baggage car would not have been derailed; and (4) that there was no explanation as to why or how said baggage car was derailed. The liability was not based on contract because the deceased was not a passenger. Even if the deceased intended to accompany the cargoes that he loaded, he was not authorized to accompany the shipment in the baggage car nor was he given any special arrangement to ride in the freight wagon. If he intended to be an ordinary passenger, he must have presented himself at the proper place and in the proper manner. He should have stayed at the station, ticket office, waiting room, or even inside the passenger coach; but not beside the baggage car, or even inside it, the latter place not being used to convey passengers (ibid., at p. 56).

c.

Children and Attractive Nuisance Rule.

Another qualification to the rule that owners do not have a duty of care towards uninvited persons is what is known as the “attractive nuisance rule.” This also serves as a limitation to the rule on contributory negligence. Under the rule, an owner is liable if he maintains in his premises dangerous instrumentalities or appliances of a character likely to lure children in play and he fails to exercise ordinary care to prevent children of tender age from playing therewith or resorting thereto. (Hidalgo Enterprises vs. Balandan, 91 Phil. 488; see also Del Rosario vs. Manila Electric, 57 Phil. 487; Taylor vs. Manila Electric, 16 Phil. 8). Liability exists even if the child is a trespasser so long as he is not of sufficient age or discretion. (Taylor vs. Manila Electric, ibid.). These include railway turntables, explosives, electrical conduits, smoldering fires and rickety structures. Case law in the United States, however, has not extended the rule to cover rivers, creeks, ponds, wagons, axes, plows, woodpiles, haystacks and the like. (Epstein, p. 583, citing Franich vs. Great Northern Ry. Co., 260 F. 2d 599 [1958]). It was also ruled by the Supreme Court in Hidalgo Enterprises vs. Balandan (supra) that a swimming pool or pond or reservoir of water is not considered attractive nuisance. The Supreme Court explained that “nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are to know the danger;” and the owner of private property is not liable if he merely duplicated the work of nature by creating an artificial pool on his own property without adding new danger.

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Contrary to the impression that the term “attractive nuisance” creates, the same is a concept which is separate from the nuisance defined under the Civil Code. A nuisance is, by its very nature, harmful to the community or to certain persons. An attractive nuisance is considered a nuisance only because it attracts certain kind of persons, children. Section 339 of the Restatement (Second) of Torts states that “a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; (c) the children because of their youth do not discover the condition or realize the risk involved intermeddling with it or in coming within the area made dangerously by it; (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. With the exception of the fourth requisite (d), the requisites provided for are consistent with prevailing jurisprudence in this jurisdiction (See Taylor vs. Manila Electric, supra). The fourth requisite is typical of American law which imposes a risk-benefit analysis in the calculation of risk. The rule regarding the duty of care on the part of landowners with respect to children who trespass to their lot was explained by the Supreme Court in Taylor vs. Manila Electric Railroad and Light Co. cited earlier. The Supreme Court adopted in the said case the ruling in what are known as “Turntable cases.” The “Turntable cases” refer to “a class of cases where the owner of the property is held liable to children who are trespassing thereon and injured, upon the ground that the owner is bound to know that children may be attracted and may be injured thereby, although the owner is guilty of no negligence except in maintaining the property in such condition that children may trespass thereon to their harm.” They are called “Turntable cases” because many such cases have arisen in connection with railroad turntables. (Bouvier’s Law Dictionary, Vol. II, 3rd Ed., p. 2325). The rule regarding children was also applied by the Court of Appeals in Cirila Moreno vs. Manila Railroad Company (CA-G.R. No. 25304-R, January 12, 1964). An eleven year old child died when she was bumped by and pinned under one of the wagons of the defend-

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ant company at its station in Paco, Manila. It was established that the area occupied by the station was a very busy and very populous place. One defense raised by the company was that it allegedly owed no duty to the child because he was a trespasser. The Court of Appeals rejected the argument holding that: “The conclusion is based on reason, justice and necessity. For children are children, and wherever they go, they must be expected to act upon childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit that dominates the youth, they will usually be found in places where the public is permitted to congregate. The movement of machines, and for that matter anything that arouses attention of the young and inquisitive mind, will draw them to the scene as inevitably as does the magnet draws the iron which comes within the range of its magnetic influence x x x “

CASE: HIDALGO ENTERPRISES, INC. vs. BALANDAN 91 Phil. 488 [1952] BENGZON, J.: This is an appeal by certiorari, from a decision of the Court of Appeals requiring Hidalgo Enterprises, Inc. to pay Guillermo Balandan and his wife, damages in the sum of P2,000 for the death of their son Mario. It appears that the petitioner Hidalgo Enterprises, Inc. “was the owner of an ice-plant factory in the City of San Pablo, Laguna, in whose premises were installed two tanks full of water, nine feet deep, for cooling purposes of its engine. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tank were barely a foot high from the surface of the ground. Through the wide gate entrance, which was continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory, as he pleased. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiffs’ son, Mario Balandan, a boy barely 8 years old, while playing with and in company of other boys of his age, entered the factory premises through the gate, to take a bath in one of said tanks; and while thus bathing, Mario sank to the bottom of the tank, only to be fished out later, already a cadaver, having died of ‘asphyxia secondary to drowning.’” The Court of Appeals, and the Court of First Instance of Laguna, took the view that the petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accident to per-

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sons entering its premises. It applied the doctrine of attractive nuisance, of American origin, recognized in this jurisdiction in Taylor vs. Manila Electric (16 Phil. 8). The doctrine may be stated, in short, as follows: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. (See 65 C.J.S., p. 455). The principal reason for the doctrine is that the condition or appliance in question although its danger is apparent to those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and this attractiveness is an implied invitation to such children. (65 C.J.S., p. 458). Now, is a swimming pool or water tank an instrumentality or appliance likely to attract little children in play? In other words is the body of water an attractive nuisance? The great majority of American decisions say no. “The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.” “There are numerous cases in which the attractive nuisance doctrine has been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools, . . . .” (65 C.J.S., p. 476 et seq., citing decisions of California, Georgia, Idaho, Illinois, Kansas, Iowa, Louisiana, Miss., Missouri, Montana, Oklahoma, Pennsylvania, Tennessee, Texas, Nebraska, Wisconsin). In fairness to the Court of Appeals it should be stated that the above volume of Corpus Juris Secundum was published in 1950, whereas its decision was promulgated on September 30, 1949. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows: “Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, . . . (he) is not liable because of having created an ‘attractive nuisance.’ (Anderson vs. Reith-Riley Const. Co., N. E., 2nd, 184, 185; 184, 185; 112 Ind. App., 170). Therefore, as petitioner’s tanks are not classified as attractive nuisance, the question whether the petitioner had taken reasonable precautions be-

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comes immaterial. And the other issue submitted by petitioner — that the parents of the boy were guilty of contributory negligence precluding recovery, because they left for Manila on that unlucky day leaving their son under the care of no responsible individual — needs no further discussion.

d.

State of Necessity.

Owners and possessors of real estate also owe a duty to allow trespassers, who are in a state of necessity, to enter their properties. Article 432 of the Civil Code states that the “owner of the thing has no right to prohibit the interference of another with the same, if the interference is necessary to avert an imminent danger and threatened damage, compared to damages arising to the owner from the interference, is much greater.” It is also a recognized justifying circ*mstance under the Revised Penal Code. (Art. 11). In both the Civil Code and the Revised Penal Code, the owner may demand from the person benefited, indemnity for damages. (Art. 432, Civil Code and Art. 101, Revised Penal Code). Justice Mariano Albert, an eminent commentator on the Revised Penal Code, explained that the state of necessity may be defined as a situation of present danger to legally protected interests, in which there is no other remedy than the injuring of another’s also legally protected interest. (Albert, Justifying and Exempting Circ*mstances under Our Penal Code, reprinted in Legal Essays and Jurisprudence, 1948, p. 433). The act executed in the state of necessity differs from self-defense and from taking the law into one’s hands, in that the latter seek to defend or establish a right against injustice, while the former aims at safeguarding a right at the expense of another right. (ibid., p. 434). Justice Albert explained that the state of necessity always presupposes the collision of legitimate interests. In general, the state of necessity may refer either to the collision of unequal rights or of equal rights. He explained: “x x x Examples of conflict between unequal rights: a destitute starving man snatches up a loaf of bread. Fire breaks out in a cluster of nipa houses, and in order to prevent its spread to adjacent houses of strong materials, the surrounding nipa houses are pulled down. In a storm at sea the captain orders the jettison of all or part of the cargo to lighten the vessel. Classical examples of equal rights in conflict: anthropophagy among survivors of a shipwreck on the high seas, and the traditional case of two shipwrecked persons fighting over a tabula unius capax. It is said that the sophists of the Graeco-

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Latin age were the first to mention this last case, which used to be thus presented: ‘What would the just man do in a shipwreck before a weaker passenger who seized a floating spar? Would he not wrench it away from the unfortunate, to ride to safety on it, especially on the high seas in the absence of all witnesses? If he is sensible, he will not hesitate: to hesitate is to be lost! If he prefers to perish rather than lay hands upon a fellowman, he indeed shows himself a manifestly just man, but also a fool, who showed for another’s life such care as he did not have for his own.’” (ibid.)

The state of necessity contemplated under Article 432 of the Civil Code and Article 11 of the Revised Penal Code involves a collision of unequal rights. The act is performed to avoid a greater evil. Justice Albert cautioned, however, that “it is not always easy to make this (comparison between the seriousness of both evils) estimate calmly and impartially, for it is human to imagine the danger to ourselves greater than the risk to another’s rights, especially in moments of agitation and peril. If the person concerned honestly believed that the harm he did was less than the risk he ran, that must suffice; for in time of danger it is not to be expected that a person will arrive at a nicely balanced judgment of the comparative seriousness of two alternative evils.’’ (ibid., p. 437). B. USE OF PROPERTY THAT INJURES OTHERS. The qualifications to the rule that no duty is owed to trespassers demonstrate the fact that ownership is not absolute. It is subject to limitations imposed by the very fact of the owner’s membership in the community. Article 431 of the New Civil Code provides that an owner cannot use his property in such a manner as to injure the rights of others — sic utero tuo ut alienum non laedas. This statutory provision is not even necessary because it is a fundamental restriction that is deemed to exist even without an express provision to that effect. (Report of the Code Commission, p. 95). Thus, an exercise of the right of the owner may give rise to an action based on quasi-delict if the owner negligently exercises such right to the prejudice of another. For example, the Supreme Court ruled in Andamo vs. Intermediate Appellate Court (191 SCRA 195 [1990]) that an action for quasi-delict may be maintained if the owner negligently constructs a pond on its property and allows it to overflow to the neighboring lots. Although, the owner had the right to construct a pond, the exercise of the right should not cause damage to his neighbor. In Romman Enterprises, Inc. vs. Court of Appeals (G.R. No. 125018, April 6, 2000), the Supreme Court explained that the claim for damages may be sustained although a landowner is entitled to

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the benefit of the easem*nt of natural drainage of water under Article 637 of the Civil Code. Under the same provision, “lower estates are obliged to receive the waters which naturally and without intervention of man descend from the higher estates.” Liability was imposed on the owner of a piggery farm because the land of his neighbor was flooded with waste water containing pig manure. Trees and vegetables of the neighbor were destroyed because such polluted water continuously flowed ankle-deep for several months. C.

LIABILITY OF PROPRIETORS OF BUILDINGS.

The New Civil Code includes the following provisions that apply to proprietors of a building or structure which involve affirmative duty of due care in maintaining the same. “Art. 2190. The proprietor of a building or structure is responsible for the damages resulting from its total or partial collapse, if it should be due to the lack of necessary repairs. Art. 2191. Proprietors shall also be responsible for damages caused: (1)

By the explosion of machinery which has not been taken care of with due diligence, and the inflammation of explosive substances which have not been kept in a safe and adequate place;

(2)

By excessive smoke, which may be harmful to persons or property;

(3)

By the falling of trees situated at or near highways or lanes, if not caused by force majeure;

(4)

By emanations from tubes, canals, sewers or deposits of infectious matter, constructed without precautions suitable to the place.

The provisions were carried over from the Old Civil Code. The New Civil Code likewise adopted the rule in the Old Civil Code to the effect that third persons who suffered damages may proceed only against the engineer or architect or contractor if the damage referred to in Articles 2190 and 2191 should be the result of any defect in construction. (Articles 2192 and 1723, New Civil Code). Nevertheless, even in the absence of the above-quoted provisions, actions for damages in the situations specified thereunder can still be maintained under Article 2176 because any damage may be considered as damage resulting from the proprietor’s failure to exercise due care in the maintenance of his building and that he used his property in such a

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way that he injured the property of another. With respect to the second paragraph of Article 2191, the Supreme Court considered the excessive smoke a nuisance that might bring about depreciation in the value of adjoining properties. However, the Court ruled that there is no certain pecuniary standard by which such damage can be measured, and in that sense the threatened injury is irreparable and may appropriately be restrained by injunction (Ollendorf v. Abrahamson, 38 Phil. 585). 3.

EMPLOYERS AND EMPLOYEES

A. EMPLOYERS. It was already explained in Chapter 1 that actions for quasidelict can still be maintained even if employee’s compensation is provided for under the Labor Code. It should be noted that in connection with quasi-delictual actions, the employee may use the provisions of the Labor Code which imposes upon the employer certain duties with respect to the proper maintenance of the work place or the provision of adequate facilities to ensure the safety of the employees. Failure on the part of the employer to comply with such mandatory provisions may be considered negligence per se. Traditionally, employers, by engaging the services of another as employee, impliedly agree to use reasonable care to provide reasonably safe premises and places in and about which the servant is required to work, to furnish reasonably safe and suitable machinery, and a sufficient supply of proper materials, tools, and appliances for the work to be done, and at all times during the continuance of work to repair and to keep in the same safe suitable condition the places, machinery, and appliances; to provide competent workmen; and so far as the servant could not be assumed to know the perils of the work itself, or of the particular portion of it in which he was engaged, to instruct him and to warn him of any secret danger which the master was aware. As to these matters, the employer is bound to exercise that measure of care which reasonably prudent men take under similar circ*mstances. (Cerezo vs. Atlantic Gulf and Pacific Co., supra., page 26). It should be noted, however, that the rules regarding the degree of care owed by employers to their employees has been modified by Articles 1711 and 1712 of the New Civil Code. The same provisions already impose liability without fault on the part of the employers. (See Julita Vda. De Severo vs. Feliciano, 157 SCRA 446 [1988]).

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

B. EMPLOYEES. Employees are also bound to exercise due care in the performance of their functions for the employers. Absent such due care, the employee may be held liable. The liability may be based on negligence committed while in the performance of the duties of the employee. The existence of the contract constitutes no bar to the commission of torts by one against the other and the consequent recovery of damages. Thus, in Araneta vs. De Joya (57 SCRA 59 [1974]), a company Vice President who signed checks and disbursed funds of the corporation for an unauthorized trip abroad of another employee may be held liable under Article 2176. He is guilty of neglecting to perform his duties properly to the damage of the company. CASE: MA-AO SUGAR CENTRAL CO., INC., et al. vs. HON. COURT OF APPEALS, et al. G.R. No. 83491, August 27, 1990 CRUZ, J.: To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central to recompense the private respondent for the death of Julio Famoso, their main source of support, who was killed in line of duty while in its employ. It is not only a matter of law but also of compassion on which we are called upon to rule today. We shall state at the outset that on both counts the petition must fail. On March 22, 1980, Famoso was riding with a co-employee in the caboose or “carbonera” of Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels and pinned him down. He was declared dead on the spot. The claims for death and other benefits having been denied by the petitioner, the herein private respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in her favor but deducted from the total damages awarded 25% thereof for the decedent’s contributory negligence and the total pension of P41,367.60 private respondent and her children would be receiving from the SSS for the next five years. The dispositive portion of the decision read: “WHEREFORE, in view of the foregoing facts and circ*mstances present in this case, the Court orders as it does hereby order the defendant Ma-ao Sugar Central thru its Manager Mr. Guillermo Y. Araneta to pay plaintiff the following amount:

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x x x” The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the ground that it was not negligent and therefore not liable at all. In its own decision, the Court of Appeals sustained the rulings of the trial court except as to the contributory negligence of the deceased and disallowed the deductions protested by the private respondent. xxx In this petition, the respondent court is faulted for finding the petitioner guilty of negligence notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing the deductions made by the trial court. Investigation of the accident revealed that the derailment of the locomotive was caused by protruding rails which had come loose because they were not connected and fixed in place by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed only with special equipment, the fish plates that should have kept the rails aligned could not be found at the scene of the accident. There is no question that the maintenance of the rails, for the purpose inter alia of preventing derailments, was the responsibility of the petitioner, and that this responsibility was not discharged. According to Jose Treyes, its own witness, who was in charge of the control and supervision of its train operations, cases of derailment in the milling district were frequent and there were even times when such derailments were reported every hour. The petitioner should therefore have taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence. The argument that no one had been hurt before because of such derailments is of course not acceptable. And neither are we impressed by the claim that the brakemen and the conductors were required to report any defect in the condition of the railways and to fill out prescribed forms for the purpose. For what is important is that the petitioner should act on these reports and not merely receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse either. Indeed, it should stress all the more the need for the responsible employees of the petitioner to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in place. It is argued that the locomotive that was derailed was on its way back and that it had passed the same rails earlier without accident. The suggestion is that the rails were properly aligned then, but that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates were loosened and detached during its first trip and the rails were as a result already misaligned during the return trip. But the Court feels that even this

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

was unlikely, for, as earlier noted, the fish plates were supposed to have been bolted to the rails and could be removed only with special tools. The fact that the fish plates were not found later at the scene of the mishap may show they were never there at all to begin with or had been removed long before. At any rate, the absence of the fish plates — whatever the cause or reason — is by itself alone proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan vs. Intermediate Appellate Court, thus: Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care.

4. BANKS The business of banks is one affected with public interest. Because of the nature of its functions, a bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship. (Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA 695 [1997]). In every case, the depositor expects the bank to treat his account with utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose as he sees fit, confident that the bank will deliver it as and to whomever he directs. A blunder on the part of the bank, such as failure to duly credit him his deposits as soon as they are made, can cause the depositor not a little embarrassment if not financial loss and perhaps even civil and criminal litigation. (ibid., citing Simex International [Manila], Inc. vs. Court of Appeals, 183 SCRA 360, 367 [1990]; Bank of Phil. Islands vs. IAC, 206 SCRA 408 [1992]; Bank of Phil. Islands vs. Court of Appeals, 102 Phil. 181 [1957]; City Trust Banking Corp. v. IAC, 232 SCRA 559 [1994]; Metropolitan Bank and Trust Company vs. CA, 237 SCRA 761 [1994]). Consequently, depositor may file an action for damages under Article 2176 of the New Civil Code if through the fault of the bank’s employee, the secretary of the depositor was able to fraudulently divert his funds from his account to the account of the secretary’s husband. (Phil. Bank of Commerce vs. Court of Appeals, 269 SCRA 695 [1997]). The Supreme Court found in the last cited case that there was contributory negligence on the part of the depositor but considered the negligence of the bank and its employees as the proximate

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cause of the loss. The bank is also liable if it wrongfully dishonors the check issued by the depositor even if there are sufficient funds in the account and even if there is no other valid justification to do so. The payee itself may not have a cause of action against the drawee bank for lack of privity but the depositor can maintain an action either based on contract or quasi-delict. Thus, if the bank dishonored the check issued by the drawer because the employees of the bank negligently failed to credit a previous deposit to the account of the drawer, the bank may be held liable for damages including damage to the business reputation of the client and moral damages for the embarrassment and humiliation that it caused. (Metropolitan Bank and Trust Company vs. Court of Appeals, 237 SCRA 761 [1994]; Pilipinas Bank vs. Court of Appeals, 234 SCRA 435 [1994]; Bank of Philippine Islands vs. Intermediate Appellate Court, 206 SCRA 408 [1992]). Negligence may also justify liability if there is forgery in the checks drawn against a bank. The general rule under Section 23 of the Negotiable Instrument’s Law is that a forged signature is wholly inoperative and payment made through or under such signature is ineffectual or does not discharge the instrument. The exception to this rule is when the party relying on the forgery is precluded from setting up forgery or want of authority. In this jurisdiction, the Supreme Court recognizes negligence of the party invoking forgery as an exception to the general rule. Thus, if an endorsem*nt was forged, the rights and liabilities of the drawee bank and the collective bank are determined by looking at the relative negligence of the parties thereto. (Bank of Philippine Islands vs. Court of Appeals, 216 SCRA 51 [1992]; Banco de Oro Savings and Mortgage vs. Equitable Bank Corporation, 157 SCRA 188 [1988]; Philippine National Bank vs. Quimpo, 158 SCRA 582 [1988]; Philippine National Bank vs. Court of Appeals, 25 SCRA 693 [1968]; Republic vs. Equitable Banking Corporation, 10 SCRA 8 [1964]; National Bank vs. National City Bank of New York, 63 Phil. 711 [1936]; San Carlos Milling Co. vs. Bank of Phil. Islands, 59 Phil. 59 [1933]). CASE: PHILIPPINE BANK OF COMMERCE vs. COURT OF APPEALS 269 SCRA 695 [1997] “Irene Yabut’s (secretary) modus operandi is far from complicated. She would accomplish two (2) copies of the deposit slip, an original and a duplicate. The original showed the name of her husband as depositor and

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

his current account number. On the duplicate copy was written the account number of her husband but the name of the account holder was left blank. PBC’s teller, Azucena Mabayad, would, however, validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for record purposes. After validation, Yabut would then fill up the name of RMC in the space left blank in the duplicate copy and change the account number written thereon, which is that of her husband’s and make it appear to be RMC’s account number x x x. With the daily remittance records also prepared by Ms. Yabut and submitted to private respondent RMC together with the validated duplicate slips with the latter’s name and account number, she made her company believe that all the while the amounts she deposited were being credited to its account when, in truth and in fact, they were being deposited by her and credited by the petitioner bank in the account of Cotas. This went on in a span of more than one (1) year without the private respondent’s knowledge. xxx Applying the above test, it appears that the bank’s teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips, original or duplicate x x x. Clearly, Ms. Mabayad failed to observe this very important procedure. The fact that the duplicate slip was not compulsorily required by the bank in accepting deposit should not relieve the petitioner bank of responsibility. The odd circ*mstance alone that such duplicate copy lacked one vital information – that of the name of the account holder – should have already put Ms. Mabayad on guard. Rather than steadily validating the incomplete copy, she should have proceeded more cautiously by being more proving as to the true reason why the name of the account holder in the duplicate slip was left blank while that in the original was filled up. She should not have been so naive in accepting hook, line and sinker the too shallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would simply fill up the blank space later on. A ‘reasonable man of ordinary prudence’ would not have given credence to such explanation and would have insisted that the space left blank filled up as a condition for validation. Unfortunately, this was not how bank teller Mabayad proceeded thus, resulting in huge losses to the private respondent. Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisal selection and supervision of Ms. Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig Branch of the petitioner bank and now its Vice-President, to the effect that, while he ordered the investigation of the incident, he never came to know that blank deposit slips were validated in total disregard of the bank’s validation procedures x x x.”

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COMMON CARRIERS

Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of passengers transported by them according to all circ*mstances of each case. (Articles 1733 and 1755, Civil Code; Sarkies Tours Philippines, Inc. vs. Court of Appeals, 280 SCRA 58; Tabacalera Insurance Co. vs. North Front Shipping Services, Inc., 272 SCRA 572 [1997]). The law provides that the common carriers shall be responsible for all the loss, destruction or deterioration of the goods unless the same is due to any of the following causes only: (1) Flood, storm, earthquake, lightning, or other natural disaster or calamity; (2) Act of the public enemy in war, whether international or civil; (3) Act or omission of the shipper or owner of the goods; (4) The character of the goods or defects in the packing or in the containers; and (5) Order or act of competent public authority. (Article 1735, Civil Code). However, in those cases where there is no liability, the presumption is that the common carriers have been at fault or have acted negligently. (Art. 1735, Civil Code; Philippine American General Insurance Co. vs. Court of Appeals, 273 SCRA 262 [1997]; Philippine Airlines, Inc. vs. Court of Appeals, 255 SCRA 48 [1996]). The same presumption of negligence is present in case of death or injuries to passengers. (Art. 1756, Civil Code; Baliwag Transit, Inc. vs. Court. of Appeals, 256 SCRA 746 [1996]; Fabre, Jr. vs. Court of Appeals, 259 SCRA 426 [1996]). It should be emphasized, however, that the duty to exercise extraordinary diligence of common carriers is usually owed to persons with whom he has contractual relation, that is, the passenger and the shipper of the goods. Hence, the case against the common carrier is for the enforcement of an obligation arising from breach of contract. (Del Prado vs. Manila Electric Co., 52 Phil. 900; MRR Co. vs. Cia Transatlantica, 38 Phil. 875). As such, the case cannot be defeated by proof of the exercise of due diligence in the selection and supervision of the employee. (Manzanal vs. Ausejo, 164 SCRA 36, 46 [1988]).However, there is also a view that extraordinary diligence is owed by common carriers even to third persons (Kapalaran Bus Line v. Coronado, 176 SCRA 792 [1989]). Nevertheless, the same act which breached the contract gives rise to an action based on quasi-delict. (Air France vs. Carrascoso, supra., p. 34). Quasi-delictual liability may be due to the passenger

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himself or a third person who may be injured thereby. The presumption of negligence does not apply if the action is one based on quasidelict. However, the nature of the business still requires the exercise of the highest degree of care demanded by the circ*mstances. 6. DOCTORS Doctors or physicians are experts, who, because of their training and the very nature of their work, are required to exercise utmost diligence in the performance of their tasks. The Supreme Court explained in Dr. Victoria L. Batiquin and Allan Batiquin vs. Court of Appeals, et al. (258 SCRA 334 [1996]) that: “Throughout history, patients have consigned their fates and lives to the skill of their doctors. For a breach of this trust, men have been quick to demand retribution. Some 4,000 years ago, the Code of Hammurabi then already provided: ‘If a physician make a deep incision upon a man with his bronze lancet and cause a man’s death or operate on the eye socket of a man with his bronze lancet and destroy the man’s eyes, they shall cut off his hand. Subsequently, Hippocrates wrote what was to become part of the healer’s oath: ‘I will follow that method of treatment which according to my ability and judgment, I consider for the benefit of my patients and abstain from whatever is deleterious and mischievous . . . . While I continue to keep this oath unviolated may it be granted to me to enjoy life and practice the art, respected by all men at all times but should I trespass and violate this oath, may the reverse be my lot.’ At present, the primary objective of the medical profession is the preservation of life and maintenance of the health of the people. Needless to say then, when a physician strays from his sacred duty and endangers instead the life of his patient, he must be made to answer therefor. Although society today cannot and will not tolerate the punishment meted out by the ancients, neither will it and this Court, as this case would show, let the act go uncondemned.

xxx

As a final word, this Court reiterates its recognition of the vital role the medical profession plays in the lives of the people and State’s compelling interest to enact measures to protect the public from ‘potentially deadly effects of incompetence and ignorance in those who would undertake to treat our bodies and minds for disease or trauma’. Indeed, a physician is bound to serve the interest of this patients ‘with the greatest solicitude, giving them always his best talent and skill’. Through her tortious conduct, the petitioner endangered the life of Flotilde Villegas, in viola-

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tion of her profession’s rigid ethical code and in contravention of the legal standards set forth for professionals, in general, and members of the medical profession, in particular.”

The duty of the physician to bring skill and care to the amelioration of the condition of his patient has its foundation in public consideration which is inseparable from the nature and exercise of his calling upon which the public reposes respect and confidence; any slip or breach in the performance of that duty, no matter how small, is corrosive of that public faith. (Bernal, et al. vs. Natalia Alonzo, et al., 12 CAR 2s 792 [1967]). A.

STANDARD OF CARE.

The action against the doctor is commonly referred to as medical malpractice. This is a particular form of negligence which consists in the failure of a physician or surgeon to apply to his practice of medicine that degree of care and skill which is ordinarily employed by the profession generally under similar conditions, and in like surrounding circ*mstances (Reyes v. Sisters of Mercy Hospital, 341 SCRA 760, 769 [2000]). Whether or not a physician committed an inexcusable lack of precaution in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circ*mstances bearing in mind the advanced state of the profession at the time of treatment or the present state of medical science (Dr. Ninevetch Cruz v. Court of Appeals, 282 SCRA 188 [1997]). The doctor must use at least the same level of care that any reasonably competent doctor would use to treat a condition under the same circ*mstances. Indeed, the standard contemplated is not what is actually the average merit among all known practitioners from the best to the worst and from the most to the least experienced, but the reasonable average merit among the ordinarily good physicians (Reyes v. Sisters of Mercy Hospital, supra. at p. 777).

a. General Practitioners v. Specialists.

According to the leading authority on Medical Jurisprudence, the “standard of care demanded from a general practitioner is ordinary care and diligence in the application of his knowledge and skill in his practice of the profession. He ought to apply to his patient what other general practitioners will apply when confronted with similar situation.” (Pedro P. Solis, Medical Jurisprudence, 1988 Ed., p. 225). On the other hand, “a specialist’s legal duty to the patient is

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

generally considered to be that of an average specialist, not that of an average physician. A physician who holds himself out as having special knowledge and skill in the treatment of a particular organ or disease or injury is required to bring to the discharge of his duty to a patient employing him as such as a specialist, not merely that of an average degree of skill possessed by general practitioners but that special degree of skill and care which physicians, similarly situated who devote special study and attention to the treatment of such organ, disease or injury ordinarily possess, regard being in the state of scientific knowledge at the time.” (ibid., citing Bolk vs. Sshizer, 149 S.E. 2d 565 [1966]) Stated differently, the proper standard is whether the physician, if a general practitioner, has exercised the degree of care and skill of the average qualified practitioner, taking into account the advances in the profession. One holding out as a specialist should also be held to the standard of care and skill of the average member of the profession practising the specialty, taking into account the advances in the profession. In both cases, it is permissible to consider the resources available to the general practitioner and the specialist as one of the circ*mstances in determining the degree of skill and care required. (Brune vs. Belinkoff, 235 N.E. 2d 793 [1968]). B.

CAPTAIN OF THE SHIP DOCTRINE.

The doctor cannot blame the assisting nurse for his own omission. Thus, if a piece of gauze was left in the abdominal cavity of the patient after an operation, the surgeon cannot excuse himself from liability just because a nurse was present. The only effect is that the nurse may be held jointly and solidarily liable with him if said nurse was also negligent. The surgeon is liable because he has the duty to ascertain for himself whether there was left any foreign body in the abdominal cavity of his patient before he surtured it. (Bernal, et al. vs. Alonzo, et al., supra). This is especially true if the doctor is the head of the surgical team, the so-called captain of the ship, because as such he has the responsibility to see to it that those under him perform the task in the proper manner. Under the “captain of the ship” doctrine, the surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his

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physical control but also those wherein he has extension of control. (Rogelio Ramos, et al. vs. Court of Appeals, et al., G.R. No. 124354, December 29, 1999, see note 73). In the above-cited Ramos v. Court of Appeals case, the doctor who was made liable under the “captain of the ship” doctrine sought reconsideration of the ruling arguing that the trend in American jurisprudence has been to reject the doctrine in the light of medical practice. The doctor cited Thomas v. Raleigh General Hospital where the court rejected the application of the doctrine citing the fact that the field of medicine has become specialized such that surgeons can no longer be deemed as having control over the other personnel in the operating room. It held that an assignment of liability based on actual control more realistically reflects the actual relationship which exists in a modern operating room. Nevertheless, the Supreme Court rejected the argument of the doctor ruling that the fact that there is such a trend in the United States does not mean that it will ipso facto follow said trend. The Supreme Court ruled that due regard for the peculiar factual circ*mstances obtaining in the case justifies the application of the Captain-of-the-Ship doctrine. The Court pointed out that from the facts on record, it can be logically inferred that the doctor in question exercised a certain degree of, at the very least, supervision over the procedure then being performed on the patient. (Ramos v. Court of Appeals, No. 124354, April 11, 2002, Resolution on Motion for Reconsideration).

C.

NOT WARRANTORS.

Physicians are not warrantors of cures or insurers against personal injuries or death of the patient. (Cruz v. Court of Appeals, supra.; Chan Lugay vs. St. Luke’s Medical Hospital, 10 CAR 2s 415, 431 [1960]). Difficulties and uncertainties in the practice of profession are such that no practitioner can guarantee results. Error of judgment will not necessarily make the physician liable. Thus, the Court of Appeals explained in Liberata Morales vs. Mary Johnston Hospital, Inc., et al. (15 CAR 2s 98 [1970]): “x x x It is noteworthy that an eye specialist is required to use only reasonable skill and care in determining through diagnosis the condition of the patient and the nature of his ailment, and is liable for failure, due to a want of the requisite skill or care, to diagnose correctly the nature of the ailment. But he does not guarantee or insure the correctness of his diagnosis, and he is not responsible for a mistake in diagnosis if he uses the proper degree of skill and care.’’ (70 C.J.S., pp. 960-961, Sec. 48d; 41 Am.

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

Jur. P. 201 Sec. 82 n 17; Anno: 68 ALR 2d 428, et al.).

Lord Denning explained in Roe vs. Minister of Health (2 Q.B. 66, Court of Appeals [1954]) that “medical science has conferred great benefits on mankind, but these benefits are attended by considerable risks. Every surgical operation is attended by risks. Doctors like the rest of us, have to learn by experience; and experience often teaches the hard way. Something goes wrong and shows up a weakness, and then it is put right.” The Supreme Court explained the rules regarding medical malpractice or negligence in Garcia-Rueda vs. Pascasio (278 SCRA 769 [1997]). In the said case, the husband of the petitioner underwent surgical operation at the UST hospital for the removal of a stone blocking his ureter. Six hours after surgery, petitioner’s husband died of complications of “unknown cause” according to the officials of the hospital. An autopsy was conducted by a doctor of the National Bureau of Investigation (NBI) who concluded that death was due to lack of care by the attending physician in administering anaesthesia. The NBI recommended that a criminal case be filed against the surgeon and the anaesthesiologist. The criminal cases were later dismissed by the City Prosecutor. Aggrieved, the petitioner filed a case before the Office of the Ombudsman against the prosecutors which in turn dismissed the complaint. The petitioner questioned the dismissal of the case by the Ombudsman before the Supreme Court but the Supreme Court dismissed the complaint finding that no grave abuse of discretion was committed by the Office of the Ombudsman. However, the Supreme Court suggested that the proper remedy is to appeal the decision of the prosecutors before the Secretary of Justice. In making such ruling, the Supreme Court explained the nature of medical malpractice in this wise:

A word on medical malpractice or negligence cases.

“In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that failure or action caused injury to the patient.”

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Hence, there are four elements involved in medical negligence cases: duty, breach, injury and proximate causation. Evidently, when the victim employed the services of Dr. Antonio and Dr. Reyes, a physician-patient relationship was created. In accepting the case, Dr. Antonio and Dr. Reyes in effect represented that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, they will employ such training, care and skill in the treatment of their patients. They have a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circ*mstances. The breach of these professional duties of skill and care, or their improper performance, by a physician surgeon whereby the patient is injured in body or in health, constitutes actionable malpractice. Consequently, in the event that any injury results to the patient from want of due care or skill during the operation, the surgeons may be held answerable in damages for negligence. Moreover, in malpractice or negligence cases involving the administration of anaesthesia, the necessity of expert testimony and the availability of the charge of res ipsa loquitur to the plaintiff, have been applied in actions against anaesthesiologists to hold the defendant liable for the death or injury of a patient under excessive or improper anaesthesia. Essentially, it requires two-pronged evidence: evidence as to the recognized standards of the medical community in the particular kind of case, and a showing that the physician in question negligently departed from this standard in his treatment. Another element in medical negligence cases is causation which is divided into two inquiries: whether the doctor’s actions in fact caused the harm to the patient and whether these were the proximate cause of the patient’s injury. Indeed here, a causal connection is discernible from the occurrence of the victim’s death after the negligent act of the anaesthesiologist in administering the anesthesia, a fact which, if confirmed, should warrant the filing of the appropriate criminal case. To be sure, the allegation of negligence is not entirely baseless. Moreover, the NBI deduced that the attending surgeons did not conduct the necessary interview of the patient prior to the operation. It appears that the cause of the death of the victim could have been averted had the proper drug been applied to cope with the symptoms of malignant hyperthermia. Also, we cannot ignore the fact that an antidote was readily available to counteract whatever deleterious effect the anaesthesia might produce. Why these precautionary measures were disregarded must be sufficiently explained.”

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

D. PROOF.

Whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should be offered to prove that the circ*mstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion. (Dr. Ninevetch Cruz vs. Court of Appeals, 282 SCRA 188 [1997]). Medical malpractice can also be established by relying on the doctrine of res ipsa loquitur. However, this is limited to cases where the court from its fund of common knowledge can determine the standard of care. These are cases where an ordinary layman can conclude that there was negligence on the part of the doctor. It is restricted to situations where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised (Reyes v. Sisters of Mercy Hospital, supra. at p. 772 citing Ramos v. Court of Appeals). If a layman cannot or is not in a position to say if due care has been exercised, the testimony of an expert would then be indispensable. The Supreme Court explained in Rogelio Ramos, et al. vs. Court of Appeals, et al. (G.R. No. 124354, December 29, 1999): “Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied when the circ*mstances attendant upon the harm are themselves of such a character as to justify an inference of negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a question of law since it is a judicial function to determine whether a certain set of circ*mstances does, as a matter of law, permit a given inference. Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent

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act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common knowledge can determine the proper standard of care. Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and the injury sustained while under the custody and management of the defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him. Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth while a patient’s jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under the influence of anesthetic, during or following an operation for appendicitis, among others. Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cau-

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

tiously applied, depending upon the circ*mstances of each case. It is generally restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and observation, that the consequences of professional care were not as such as would ordinarily have followed if due care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred which is beyond the regular scope of customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the average man as the negligent cause or causes of the untoward consequence. If there was such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of res ipsa loquitur. A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme Court in applying the res ipsa loquitur stated: The plaintiff herein submitted himself for a mastoid operation and delivered his person over to the care, custody and control of his physician who had complete and exclusive control over him, but the operation was never performed. At the time of submission he was neurologically sound and physically fit in mind and body, but he suffered irreparable damage and injury rendering him decerebrate and totally incapacitated. The injury was one which does not ordinarily occur in the process of a mastoid operation or in the absence of negligence in the administration of an anesthetic, and in the use and employment of an endoctracheal tube. Ordinarily a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia

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in the absence of negligence. Upon these facts and under these circ*mstances a layman would be able to say, as a matter of common knowledge and observation, that the consequences of professional treatment were not as such as would ordinarily have followed if due care had been exercised. Here, the plaintiff could not have been guilty of contributory negligence because he was under the influence of anesthetics and unconscious, and the circ*mstances are such that the true explanation of event is more accessible to the defendants than to the plaintiff for they had the exclusive control of the instrumentalities of anesthesia. Upon all the facts, conditions and circ*mstances alleged in Count II it is held that a cause of action is stated under the doctrine of res ipsa loquitur. Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the present case, Erlinda submitted herself for cholecystectomy and expected a routine general surgery to be performed on her gall bladder. On that fateful day she delivered her person over to the care, custody and control of private respondents who exercised complete and exclusive control over her. At the time of submission, Erlinda was neurologically sound and, except for a few minor discomforts, was likewise physically fit in mind and body. However, during the administration of anesthesia and prior to the performance of cholecystectomy she suffered irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda sustained, is an injury which does not normally occur in the process of a gall bladder operation. In fact, this kind of situation does not happen in the absence of negligence of someone in the administration of anesthesia and in the use of endotracheal tube. Normally, a person being put under anesthesia is not rendered decerebrate as a consequence of administering such anesthesia if the proper procedure was followed. Furthermore, the instruments used in the administration of anesthesia, including the endotracheal tube, were all under the exclusive control of private respondents, who are the physiciansin-charge. Likewise, petitioner Erlinda could not have been guilty of contributory negligence because she was under the influence of anesthetics which rendered her unconscious. Considering that a sound and unaffected member of the body (the brain) is injured or destroyed while the patient is unconscious and under the immediate and exclusive control of the physicians, we hold that a practical administration of justice dictates the application of res ipsa loquitur. Upon these facts and under these circ*mstances the Court would be able to say, as a matter of common knowledge and observation, if negligence at-

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

tended the management and care of the patient. Moreover, the liability of the physicians and the hospital in this case is not predicated upon an alleged failure to secure the desired results of an operation nor on an alleged lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed on Erlinda. Thus, upon all these initial determination a case is made out for the application of the doctrine of res ipsa loquitur. Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage.”

Thus, in Reyes v. Sisters of Mercy Hospital (supra.) the petitioners, heirs of the deceased, argued that respondent Dr. Rico hastily and erroneously relied upon the Widal test, diagnosed the deceased’s illness as typhoid fever and immediately prescribed the administration of the antibiotic chloromycetin and respondent Dr. Blanes erred in ordering the administration of the second dose of 500 milligrams of chloromycetin barely three hours after the first was given. However, the petitioners failed to present an expert witness to establish that the same specific acts constitute malpractice. They only presented a doctor who had extensive experience on autopsies but was not a specialist on typhoid fever. For their part, the private respondents presented two doctors who were experts on the subject. One is a diplomate whose specialization is infectious diseases and microbiology while the other, an associate professor in a medical school who has already treated a thousand cases of typhoid fever. Through these expert witnesses, it was established that although the Widal test is not conclusive, it remains a standard diagnostic test for typhoid fever. The expert witnesses confirmed that the actions of the respondent doctors were in accordance with the reasonable average merit among ordinarily good physicians.

E.

LIABILITY OF HOSPITALS AND CONSULTANTS.

The “captain of the ship” described above may be a mere “consultant” in the hospital. The term “consultant” is loosely used by hospitals to distinguish their attending and visiting physicians from the residents, who are also physicians. In most hospitals abroad, the term visiting or attending physician, not consultant, is used. (ibid., note 74).

The hospital itself is not liable under Article 2180 in the ab-

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sence of employer-employee relationship. Thus, the Supreme Court explained in its Resolution on the Motion for Reconsideration in Rogelio Ramos et al. v. Court of Appeals, et al. (No. 124354, April 11, 2002): DLSMC maintains that first, a hospital does not hire or engage the services of a consultant, but rather, accredits the latter and grants him or her the privilege of maintaining a clinic and/or admitting patients in the hospital upon a showing by the consultant that he or she possesses the necessary qualifications, such as accreditation by the appropriate board (diplomate), evidence of fellowship and references. Second, it is not the hospital but the patient who pays the consultant’s fee for services rendered by the latter. Third, a hospital does not dismiss a consultant; instead, the latter may lose his or her accreditation or privileges granted by the hospital. Lastly, DLSMC argues that when a doctor refers a patient for admission in a hospital, it is the doctor who prescribes the treatment to be given to said patient. The hospital’s obligation is limited to providing the patient with the preferred room accommodation, the nutritional diet and medications prescribed by the doctor, the equipment and facilities necessary for the treatment of the patient, as well as the services of the hospital staff who perform the ministerial tasks of ensuring that the doctor’s orders are carried out strictly. After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospital’s position on this issue is meritorious. There is no employer-employee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. As explained by respondent hospital, that the admission of a physician to membership in DLSMC’s medical staff as active or visiting consultant is first decided upon by the Credentials Committee thereof, which is composed of the heads of the various specialty departments such as the Department of Obstetrics and Gynecology, Pediatrics, Surgery with the department head of the particular specialty applied for as chairman. The Credentials Committee then recommends to DLSMC’s Medical Director or Hospital Administrator the acceptance or rejection of the applicant physician, and said director or administrator validates the committee’s recommendation. Similarly, in cases where a disciplinary action is lodged against a consultant, the same is initiated by the department to whom the consultant concerned belongs and filed with the Ethics Committee consisting of the department specialty heads. The medical director/hospital administrator merely acts as ex-officio member of said committee.

Neither is there any showing that it is DLSMC which pays

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any of its consultants for medical services rendered by the latter to their respective patients. Moreover, the contract between the consultant in respondent hospital and his patient is separate and distinct from the contract between respondent hospital and said patient. The first has for its object the rendition of medical services by the consultant to the patient, while the second concerns the provision by the hospital of facilities and services by its staff such as nurses and laboratory personnel necessary for the proper treatment of the patient. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, we reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda.

The Supreme Court modified its previous ruling in the same case. Earlier, it made the hospital liable on the ground that the hospital exercised significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Although its Decision dated December 29, 1999 on this point is not controlling, it is interesting to quote the explanation of the Supreme Court which can be considered the contrary (though not controlling) view on the liability of hospitals: We now discuss the responsibility of the hospital in this particular incident. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting “consultants,” who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. However, the difficulty is only more apparent than real. In the first place, hospitals exercise significant control in the hiring and firing of consultants and in the conduct of their work within the hospital premises. Doctors who apply for “consultant” slots, visiting or attending, are required to submit proof of completion of residency, their educational qualifications; generally, evidence of accreditation by the appropriate board (diplomate), evidence of fellowship in most cases, and references. These requirements are carefully scrutinized by members of the hospital administration or by a review committee set up by the hospital who either accept or reject the application. This is particularly true with respondent hospital. After a physician is accepted, either as a visiting or attending consultant, he is normally required to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns

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and residents, moderate grand rounds and patient audits and perform other tasks and responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the privilege of admitting patients into the hospital. In addition to these, the physician’s performance as a specialist is generally evaluated by a peer review committee on the basis of mortality and morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant remiss in his duties, or a consultant who regularly falls short of the minimum standards acceptable to the hospital or its peer review committee, is normally politely terminated. In other words, private hospitals, hire, fire and exercise real control over their attending and visiting “consultant” staff. While “consultants” are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patient’s condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. In assessing whether such a relationship in fact exists, the control test is determining. Accordingly, on the basis of the foregoing, we rule that for the purpose of allocating responsibility in medical negligence cases, an employer-employee relationship in effect exists between hospitals and their attending and visiting physicians. This being the case, the question now arises as to whether or not respondent hospital is solidarily liable with respondent doctors for petitioner’s condition. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the former’s responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with regard to the degree of supervision which it exercised over its physicians. In neglecting to offer such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden under the last paragraph of Article 2180. Having failed to do this, respondent hospital is

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consequently solidarily responsible with its physicians for Erlinda’s condition.

CASE: DR. NINEVETCH CRUZ vs. COURT OF APPEALS 282 SCRA 188 [1997] FRANCISCO, J.: “Doctors are protected by a special rule of law. They are not guarantors of care. They do not even warrant a good result. They are not insurers against mishaps or unusual consequences. Furthermore, they are not liable for honest mistakes of judgment. . . .” The present case against petitioner is in the nature of a medical malpractice suit, which in simplest terms is the type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm. In this jurisdiction, however, such claims are most often brought as a civil action for damages under Article 2176 of the Civil Code, and in some instances, as a criminal case under Article 365 of the Revised Penal Code with which the civil action for damages is impliedly instituted. It is via the latter type of action that the heirs of the deceased sought redress for the petitioner’s alleged imprudence and negligence in treating the deceased thereby causing her death. The petitioner and one Dr. Lina Ercillo who was the attending anaesthesiologist during the operation of the deceased were charged with “reckless imprudence and negligence resulting to (sic) homicide” in an information which reads: “That on or about March 23, 1991, in the City of San Pablo, Republic of the Philippines and within the jurisdiction of this Honorable Court, the accused above-named, being then the attending anaesthesiologist and surgeon, respectively, did then and there, in a negligence (sic), careless, imprudent, and incompetent manner, and failing to supply or store sufficient provisions and facilities necessary to meet any and all exigencies apt to arise before, during and/or after a surgical operation causing by such negligence, carelessness, imprudence, and incompetence, and causing by such failure, including the lack of preparation and foresight needed to avert a tragedy, the untimely death of said Lydia Umali on the day following said surgical operation.” xxx [The accused was convicted by the Municipal Circuit Trial Court and the same was affirmed by the Regional Trial Court and the Court of Appeals] First, the antecedent facts.

On March 22, 1991, prosecution witness, Rowena Umali De Ocampo,

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accompanied her mother to the Perpetual Help Clinic and General Hospital situated in Balagtas Street, San Pablo City, Laguna. They arrived at the said hospital at around 4:30 in the afternoon of the same day. Prior to March 22, 1991, Lydia was examined by the petitioner who found a “myoma” in her uterus, and scheduled her for a hysterectomy operation on March 23, 1991. Rowena and her mother slept in the clinic on the evening of March 22, 1991 as the latter was to be operated on the next day at 1:00 o’clock in the afternoon. According to Rowena, she noticed that the clinic was untidy and the window and the floor were very dusty prompting her to ask the attendant for a rag to wipe the window and the floor with. Because of the untidy state of the clinic, Rowena tried to persuade her mother not to proceed with the operation. The following day, before her mother was wheeled into the operating room, Rowena asked the petitioner if the operation could be postponed. The petitioner called Lydia into her office and the two had a conversation. Lydia then informed Rowena that the petitioner told her that she must be operated on as scheduled. Rowena and her other relatives, namely her husband, her sister and two aunts waited outside the operating room while Lydia underwent operation. While they were waiting, Dr. Ercillo went out of the operating room and instructed them to buy tagamet ampules which Rowena’s sister immediately bought. About one hour had passed when Dr. Ercillo came out again this time to ask them to buy blood for Lydia. They bought type “A” blood from the St. Gerald Blood Bank and the same was brought by the attendant into the operating room. After the lapse of a few hours, the petitioner informed them that the operation was finished. The operating staff then went inside the petitioner’s clinic to take their snacks. Some thirty minutes after, Lydia was brought out of the operating room in a stretcher and the petitioner asked Rowena and the other relatives to buy additional blood for Lydia. Unfortunately, they were not able to comply with petitioner’s order as there was no more type “A” blood available in the blood bank. Thereafter, a person arrived to donate blood which was later transfused to Lydia. Rowena then noticed her mother, who was attached to an oxygen tank, gasping for breath. Apparently, the oxygen supply had run out and Rowena’s husband together with the driver of the accused had to go to the San Pablo District Hospital to get oxygen. Lydia was given the fresh supply of oxygen as soon as it arrived. But at around 10:00 o’clock P.M., she went into shock and her blood pressure dropped to 60/50. Lydia’s unstable condition necessitated her transfer to the San Pablo District Hospital so she could be connected to a respirator and further examined. The transfer to the San Pablo District Hospital was without the prior consent of Rowena nor of the other relatives present who found out about the intended transfer only when an ambulance arrived to take Lydia to the San Pablo District Hospital. Rowena and her other relatives then boarded a tricycle and followed the ambulance. Upon Lydia’s arrival at the San Pablo District Hospital, she was wheeled into the operating room and the petitioner and Dr. Ercillo re-operated on her because there was blood oozing from the abdominal incision. The at-

AFFIRMATIVE DUTIES AND MISCELLANEOUS ACTIVITIES

tending physicians summoned Dr. Bartolome Angeles, head of the Obstetrics and Gynecology Department of the San Pablo District Hospital. However, when Dr. Angeles arrived, Lydia was already in shock and possibly dead as her blood pressure was already 0/0. Dr. Angeles then informed petitioner and Dr. Ercillo that there was nothing he could do to help save the patient. While the petitioner was closing the abdominal wall, the patient died. Thus, on March 24, 1991, at 3:00 o’clock in the morning, Lydia Umali was pronounced dead. Her death certificate states “shock” as the immediate cause of death and “Disseminated Intravascular Coagulation (DIC)” as the antecedent cause. In convicting the petitioner, the MTCC found the following circ*mstances as sufficient basis to conclude that she was indeed negligent in the performance of the operation: “. . . , the clinic was untidy, there was lack of provision like blood and oxygen to prepare for any contingency that might happen during the operation. The manner and the fact that the patient was brought to the San Pablo District Hospital for reoperation indicates that there was something wrong in the manner in which Dra. Cruz conducted the operation. There was no showing that before the operation, accused Dra. Cruz had conducted a cardio pulmonary clearance or any typing of the blood of the patient. It was (sic) said in medical parlance that the “the abdomen of the person is a temple of surprises” because you do not know the whole thing the moment it was open (sic) and surgeon must be prepared for any eventuality thereof. The patient (sic) chart which is a public document was not presented because it is only there that we could determine the condition of the patient before the surgery. The court also noticed in Exh. “F-1” that the sister of the deceased wished to postpone the operation but the patient was prevailed upon by Dra. Cruz to proceed with the surgery. The court finds that Lydia Umali died because of the negligence and carelessness of the surgeon Dra. Ninevetch Cruz because of loss of blood during the operation of the deceased for evident unpreparedness and for lack of skill, the reason why the patient was brought for operation at the San Pablo City District Hospital. As such, the surgeon should answer for such negligence. With respect to Dra. Lina Ercillo, the anaesthesiologist, there is no evidence to indicate that she should be held jointly liable with Dra. Cruz who actually did the operation.” The RTC reiterated the abovementioned findings of the MTCC and upheld the latter’s declaration of “incompetency, negligence and lack of foresight and skill of appellant (herein petitioner) in handling the subject patient before and after the operation.” And likewise affirming the petitioner’s conviction, the Court of Appeals echoed similar observations, thus: “. . . While we may grant that the untidiness and filthiness of the clinic may not by itself indicate negligence, it nevertheless shows the absence of due care and supervision over her subordinate employees. Did this unsanitary condition permeate the operating room? Were the

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surgical instruments properly sterilized? Could the conditions in the OR have contributed to the infection of the patient? Only the petitioner could answer these, but she opted not to testify. This could only give rise to the presumption that she has nothing good to testify on her defense. Anyway, the alleged “unverified statement of the prosecution witness” remains unchallenged and unrebutted. Likewise undisputed is the prosecution’s version indicating the following facts: that the accused asked the patient’s relatives to buy Tagamet capsules while the operation was already in progress; that after an hour, they were also asked to buy type “A” blood for the patient; that after the surgery, they were again asked to procure more type “A” blood, but such was not anymore available from the source; that the oxygen given to the patient was empty; and that the son-in-law of the patient, together with a driver of the petitioner, had to rush to the San Pablo City District Hospital to get the much-needed oxygen. All these conclusively show that the petitioner had not prepared for any unforeseen circ*mstances before going into the first surgery, which was not emergency in nature, but was elective or prescheduled; she had no ready antibiotics, no prepared blood, properly typed and cross-matched, and no sufficient oxygen supply. Moreover, there are a lot of questions that keep nagging Us. Was the patient given any cardio-pulmonary clearance, or at least a clearance by an internist, which are standard requirements before a patient is subjected to surgery. Did the petitioner determine as part of the pre-operative evaluation, the bleeding parameters of the patient, such as bleeding time and clotting time? There is no showing that these were done. The petitioner just appears to have been in a hurry to perform the operation, even as the family wanted a postponement to April 6, 1991. Obviously, she did not prepare the patient; neither did she get the family’s consent to the operation. Moreover, she did not prepare a medical chart with instructions for the patient’s care. If she did all these, proof thereof should have been offered. But there is none. Indeed, these are overwhelming evidence of “recklessness and imprudence.” This Court, however, holds differently and finds the foregoing circ*mstances insufficient to sustain a judgment of conviction against the petitioner for the crime of reckless imprudence resulting in homicide. The elements of reckless imprudence are: (1) that the offender does or fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without malice; (4) that material damage results from the reckless imprudence; and (5) that there is inexcusable lack of precaution on the part of the offender, taking into consideration his employment or occupation, degree of intelligence, physical condition, and other circ*mstances regarding persons, time and place. Whether or not a physician has committed an “inexcusable lack of precaution” in the treatment of his patient is to be determined according to the standard of care observed by other members of the profession in good standing under similar circ*mstances bearing in mind the advanced state

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of the profession at the time of treatment or the present state of medical science. In the recent case of Leonila Garcia-Rueda vs. Wilfred L. Pascasio, et al., this Court stated that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor would use to treat a condition under the same circ*mstances. It is in this aspect of medical malpractice that expert testimony is essential to establish not only the standard of care of the profession but also that the physician’s conduct in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert testimony is usually necessary to support the conclusion as to causation. Immediately apparent from a review of the records of this case is the absence of any expert testimony on the matter of the standard of care employed by other physicians of good standing in the conduct of similar operations. The prosecution’s expert witnesses in the persons of Dr. Floresto Arizala and Dr. Nieto Salvador, Jr. of the National Bureau of Investigation (NBI) only testified as to the possible cause of death but did not venture to illuminate the court on the matter of the standard of care that petitioner should have exercised. All three courts below bewail the inadequacy of the facilities of the clinic and its untidiness; the lack of provisions such as blood, oxygen, and certain medicines; the failure to subject the patient to a cardio-pulmonary test prior to the operation; the omission of any form of blood typing before transfusion; and even the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner. But while it may be true that the circ*mstances pointed out by the courts below seemed beyond cavil to constitute reckless imprudence on the part of the surgeon, this conclusion is still best arrived at not through the educated surmises nor conjectures of laymen, including judges, but by the unquestionable knowledge of expert witnesses. For whether a physician or surgeon has exercised the requisite degree of skill and care in the treatment of his patient is, in the generality of cases, a matter of expert opinion. The deference of courts to the expert opinion of qualified physicians stems from its realization that the latter possess unusual technical skills which laymen in most instances are incapable of intelligently evaluating. Expert testimony should have been offered to prove that the circ*mstances cited by the courts below are constitutive of conduct falling below the standard of care employed by other physicians in good standing when performing the same operation. It must be remembered that when the qualifications of a physician are admitted, as in the instant case, there is an inevitable presumption that in proper cases he takes the necessary precaution and employs the best of his knowledge and skill in attending to his clients, unless the contrary is sufficiently established. This presumption is rebuttable by expert opinion which is so sadly lacking in the case at bench.

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Even granting arguendo that the inadequacy of the facilities and untidiness of the clinic; the lack of provisions; the failure to conduct pre-operation tests on the patient; and the subsequent transfer of Lydia to the San Pablo Hospital and the reoperation performed on her by the petitioner do indicate, even without expert testimony, that petitioner was recklessly imprudent in the exercise of her duties as a surgeon, no cogent proof exists that any of these circ*mstances caused petitioner’s death. Thus, the absence of the fourth element of reckless imprudence: that the injury to the person or property was a consequence of the reckless imprudence. In litigations involving medical negligence, the plaintiff has the burden of establishing appellant’s negligence and for a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a causal connection of such breach and the resulting death of his patient. In Chan Lugay vs. St. Luke’s Hospital, Inc., where the attending physician was absolved of liability for the death of the complainant’s wife and newborn baby, this Court held that: “In order that there may be a recovery for an injury, however, it must be shown that the ‘injury for which recovery is sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury must be a direct and natural sequence of events, unbroken by intervening efficient causes.’ In other words, the negligence must be the proximate cause of the injury. For, ‘negligence, no matter in what it consists cannot create a right of action unless it is the proximate cause of the injury complained of.’ And ‘the proximate cause of an injury is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’” (Emphasis supplied.) xxx This Court has no recourse but to rely on the expert testimonies rendered by both prosecution and defense witnesses that substantiate rather than contradict petitioner’s allegation that the cause of Lydia’s death was DIC which, as attested to by an expert witness, cannot be attributed to the petitioner’s fault or negligence. The probability that Lydia’s death was caused by DIC was unrebutted during trial and has engendered in the mind of this Court a reasonable doubt as to the petitioner’s guilt. Thus, her acquittal of the crime of reckless imprudence resulting in homicide. While we condole with the family of Lydia Umali, our hands are bound by the dictates of justice and fair dealing which hold inviolable the right of an accused to be presumed innocent until proven guilty beyond reasonable doubt. Nevertheless, this Court finds the petitioner civilly liable for the death of Lydia Umali, for while a conviction of a crime requires proof beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. The petitioner is a doctor in whose hands a patient puts his life and limb. For insufficiency of evidence this Court was not able to render a sentence of conviction but it is not blind to the reckless and imprudent manner

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in which the petitioner carried out her duties. A precious life has been lost and the circ*mstances leading thereto exacerbated the grief of those left behind. The heirs of the deceased continue to feel the loss of their mother up to the present time and this Court is aware that no amount of compassion and commiseration nor words of bereavement can suffice to assuage the sorrow felt for the loss of a loved one. Certainly, the award of moral and exemplary damages in favor of the heirs of Lydia Umali are proper in the instant case.

7. LAWYERS The conduct of lawyers is governed by the Code of Professional Responsibility. Cannon 18 provides that “a lawyer shall serve his client with competence and diligence.” It is his responsibility not to undertake a legal service he knows or should know that he is not qualified to render. (Cannon 18.01). He is also enjoined not to handle any legal matter without adequate preparation. (Cannon 18.02). Cannon 18.03 provides that a lawyer shall not neglect a legal matter entrusted to him and his negligence in connection therewith shall render him liable. However, it was explained by the Supreme Court that “an attorney is not bound to exercise extraordinary diligence, but only a reasonable degree of care and skill, having reference to the character of the business he undertakes to do. Prone to err like any other human being, he is not answerable to every error or mistake, and will be protected as long as he acts honestly and in good faith to the best of his skill and knowledge.” (Adarne vs. Aldaba, 83 SCRA 734, 739 [1978]). Necessarily, the lawyer’s liability may not be based solely on that fact that his client lost the case. The Supreme Court explained in Atienza vs. Evangelista (80 SCRA 338, 341-342 [1977]): “It would be to place an intolerable burden on a member of the bar if just because a client failed to obtain what is sought by her after due exertion of the required effort on his part, he would be held accountable. Success in a litigation is certainly not the test of whether or not a lawyer had lived up to his duties to a client. It is enough that with the thorough preparation of the case handled by him, he had taken all the steps to prosecute his suit. If thereafter the result would be the frustration of his client’s hopes, that is, a cause for his disappointment, no doubt for him no less than for his client, but not for displeasing action. He is more to be sympathized with than condemned — on the assumption of course that he did what was expected of him.”

In Dominga Roque, et al. vs. Magtanggol C. Gunigundo (89 SCRA 178 [1979]), the plaintiffs filed an action to recover a parcel of land.

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Their lawyer, the respondent, received a copy of the order dismissing the case on the ground of laches and prior judgment. Within the fifteen (15) day period to appeal or to file a Motion for Reconsideration, the lawyer filed a motion for extension to file a motion for reconsideration — a prohibited motion. Later, the lawyer was admonished by the Supreme Court but the Court refused to impose liability for damages because no damage was established. The High Court explained: “However, the fact that the complainants and their co-plaintiffs lost the right to appeal would not necessarily mean that they were damaged. The lower court’s order of dismissal has in its favor the presumption of validity or correctness. Indeed, an examination of that order discloses that the trial court painstakingly studied the motion to dismiss and carefully rationalized its order. It found that the action was filed more than forty years after the disputed land was registered in the name of the defendants’ predecessor-ininterest. Where a judgment became final through the fault of the lawyer who did not appeal therefrom, that fact alone is not a sufficient ground for the losing party to recover damages from his lawyer since the action for damages rests on the unsubstantiated and arbitrary supposition of the injustice of the decision which became final through the fault and negligence of the lawyer. (Heredia vs. Salinas, 10 Phil. 157, 162, See Ventanilla vs. Centeno, 110 Phil. 811, where the lawyer who failed to perfect an appeal was ordered to pay his client two hundred pesos as nominal damages).”

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CHAPTER 4

DEFENSES IN NEGLIGENCE CASES This chapter deals with the defenses which may be raised by the defendants in negligence cases. Defenses discussed here may either be partial or complete defenses, that is, defenses that may either mitigate liability or completely bar recovery. Partial defenses include contributory negligence. On the other hand, assumption of risk and fortuitous event may be invoked as complete defenses. 1.

PLAINTIFF’S CONDUCT AND CONTRIBUTORY NEGLIGENCE

The victim of negligence is likewise required to exercise due care in avoiding injury to himself. He ought to conform to the standard of a reasonable man for his own protection. Article 2179 of the Civil Code provides that: Art. 2179. When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded.

A.

PLAINTIFF’S OWN NEGLIGENCE AS THE PROXIMATE CAUSE.

The rule stated in the first sentence of Article 2179 corresponds to the rule under the old Civil Code which was based on Roman Law, the Partidas and the decisions of the Supreme Court of Spain. The Supreme Court explained in Taylor vs. Manila Electric Railroad and Light Co. (supra, pp. 26 to 30) that: “The Partidas contain the following provisions: ‘The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not 200

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demand reparation therefor from another.’ (Law 25, tit. 5, Partida 3). ‘And they even said that when a man received an injury through his own negligence he should blame himself for it.’ (Rule 22, tit. 34, Partida 7). ‘According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another.’ (Law 2, tit. 7, Partida 2). And while there does not appear to be anything in the Civil Code (old Civil Code) which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its provisions by the Supreme Court of Spain, and by this court in the case of Rakes vs. Atlantic Gulf and Pacific Co., (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.’’

In one case, the accused operator of a locomotive was acquitted because it was established that the victim’s negligence was the proximate cause of his death. The deceased was walking along the railroad track together with some companions. The deceased suddenly and carelessly turned to the left, trying to cross the very tracks on which a locomotive was running and at the time that it was barely three meters away. The Court observed that no matter what speed the locomotive was running, the accident would have occurred just the same because of the negligence of the deceased. (People vs. San Gabriel, CA-G.R. No. 3598-R, June 19, 1950). The same conclusion was reached in Raynera v. Hiceta (No. 120027, April 21, 1999) where it was held that the direct cause of the accident was the negligence of the victim. The vehicle of the petitioner’s husband in this case crashed (his motorcycle) into the left rear portion of the truck-trailer causing injuries to his head and his eventual death. The Court ruled that the victim had the responsibility of avoiding bumping the vehicle in front of him. He was in control of the situation and his motorcycle was equipped with headlights to enable him to see what was in front of him. The circ*mstances indicate that an accident could have been easily avoided unless the victim had been driving too fast and did not exercise due care and prudence demanded of him under the circ*mstances.

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CASES: PHILIPPINE LONG DISTANCE TELEPHONE CO., INC. vs. COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN G.R. No. 57079, September 29, 1989 This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental by private respondent spouses against petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit system. Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any accident or injuries arising from the negligence or carelessness of Barte or any of its employees. In answer thereto, Barte claimed that it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations. xxx [The trial court rendered a decision in favor of private respondents. On appeal, the Court of Appeals rendered a decision in said appealed case reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. On a second motion for reconsideration, the Court of Appeals set aside its previous decision and affirmed in toto the decision of the lower court. PLDT moved to set aside the latter resolution but the same was denied. Hence, PLDT elevated the case to the Supreme Court. The High Court reinstated the original decision of the

DEFENSES IN NEGLIGENCE CASES

Court of Appeals on procedural and substantive grounds.] Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the respondent court in its original decision that the accident which befell private respondents was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner PLDT. Such findings were reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent court’s resolution of January 24, 1980 which we quote with approval: “First. Plaintiff’s jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the ACCIDENT MOUND. “Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left that is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That may explain plaintiff-husband’s insistence that he did not see the ACCIDENT MOUND for which reason he ran into it.’’ “Second. That plaintiff’s Jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the south of the ACCIDENT MOUND.’’ “It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1 shows that the ditches on Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was taken.’’ “Third. Plaintiff’s jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have braked the vehicle the moment it struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running quite fast. If the jeep had been braked at 25 kilometers an hour, plaintiffs would not have been thrown against the windshield and they would not have suffered their injuries.’’ “Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some reason or other it had to swerve suddenly to the right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the drizzle, he should not have run on dim lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane at

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25 kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was relatively big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the existence and location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution, he should have driven his jeep on the night of the accident so as to avoid hitting the ACCIDENT MOUND.” The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages. The perils of the road were known to, hence, appreciated and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner. The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of excavations on the site. The private respondents already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. It is basic that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger, hence, he is solely responsible for the consequences of his imprudence. Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient evidence to prove any negligence on the part of PLDT. We have for consideration only the self-serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The absence of a police report of the incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated have not even been satisfactorily explained. As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —

DEFENSES IN NEGLIGENCE CASES

“(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves, and such evidence should be very carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation to plaintiffs, another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary damages from the big corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant which would have extreme difficulty in contesting such person’s claim. If there were no witness or record available from the police department of Bacolod, defendant would not be able to determine for itself which of the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police department.” A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. Whosoever relies on negligence for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action must fail. KIM vs. PHILIPPINE AERIAL TAXI CO. 58 Phil. 838 (1933) VILLAREAL, J.: This is an appeal taken by the plaintiff Teh Le Kim from the judgment rendered by the Court of First Instance of Manila, absolving the defendant Philippine Aerial Taxi Co., Inc., from the complaint, which was dismissed, without special pronouncement as to costs. In support of his appeal, the appellant assigns five alleged errors as committed by the trial court, which we shall discuss in the course of this decision. The following facts have been proven by a preponderance of evidence presented during the trial, to wit: On the morning of September 4, 1931, the plaintiff herein bought, in Manila, a passenger ticket for a flight to Iloilo in one of the defendant company’s hydroplanes starting from Madrigal Field in Pasay. Inasmuch as the engine of the plane Mabuhay, in which he was to make the flight, was not working satisfactorily, the said plaintiff had to wait for some time. While the engine was being tested, the plaintiff saw how it was started by turning the propeller repeatedly and how the man who did it ran away from it each time in order not to be caught by the said propeller. Before the plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decided to have the plaintiff make the flight therein. The plaintiff and his companion were carefully carried from the beach to the plane, entering the same by the

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rear or tail end, and were placed in their seats to which they were strapped. Later, they were shown how the straps could be tightened or loosened in case of accident and were instructed further not to touch anything in the plane. After an uneventful flight, the plane landed on the waters of Guimaras Strait, in front of Iloilo and taxied toward the beach until its pontoons struck bottom, when the plane stopped. The pilot shut off the gasoline feed pipe, permitting the engine, however, to continue to function until all the gasoline was drained from the feed pipe and carburetor. This operation was necessary in accordance with the established practice of aviation in order to avoid danger of fire which would exist if the pipes and carburetor remained full of gasoline, and to prevent the sudden cooling of the engine which might cause serious damage, especially to the valves. When the pilot observed that a banca was approaching rapidly on the right hand side of the plane, he arose, signalled and shouted to the boatman to keep his banca at a distance from the plane, inasmuch as there were waves and quite a strong current, and he feared that the banca, which had a high prow, might collide with the plane and damage either the wing or the pontoon thereof. While he was doing this, he heard the propeller strike something. He immediately turned off the switch and, looking on the other side, he saw Bohn picking up the plaintiff out of the water. What really happened was that at the moment the pontoons touched bottom and while the pilot was signalling to the banca, the plaintiff unfastened the straps around him and, not even waiting to put on his hat, climbed over the door to the lower wing, went down the ladder to the pontoon and walked along the pontoon toward the revolving propeller. The propeller first grazed his forehead and, as he threw up his arm, it was caught by the revolving blades thereof and so injured that it had to be amputated. Bohn and Garrett of Warner, Barnes & Co., consignees of the defendant in Iloilo, were on the beach to meet the plane and to make arrangements for the disembarking of the passengers. Upon seeing the plaintiff walking toward the propeller, they shouted frantically and motioned to him to keep away from it, but the said plaintiff took no heed of them. The usual procedure in discharging passengers from a hydroplane is to wait until the propeller stops, then turn the plane around by hand so as to have the rear or tail thereof towards the beach, and then take the passengers to shore in a banca. The pilot in charge of the plane has had fourteen years experience, having first learned to fly during the World War. He is duly licensed by the Department of Commerce of the United States and by the Department of Commerce and Communications of the Government of the Philippine Islands. The only question to decide in this appeal, which is raised in the first assignment of error, is whether or not the defendant entity has complied with its contractual obligation to carry the plaintiff-appellant Teh Le Kim safe and sound to his destination. The contract entered into by the plaintiff Teh Le Kim and the defendant entity Philippine Aerial Taxi Co., Inc., was that upon payment of the

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price of the passage, which the carrier had received, the latter would carry the former by air in one of its hydroplanes and put him, safe and sound, on the beach at Iloilo. After an uneventful flight, the hydroplane, which carried the plaintiff and his companion, arrived at the Iloilo beach, as usual, with nothing more left to do but to take the plaintiff and his companion, safe and sound, ashore. In order to do this, it was necessary to wait for the propeller to stop, turn the rear or tail end of the plane towards the shore, take the passengers out by the aforesaid rear or tail end thereof, place them in a banca and take them ashore. By sheer common sense, the plaintiff ought to know that a propeller, be it that of a ship or of an aeroplane, is dangerous while in motion and that to approach it is to run the risk of being caught and injured thereby. He ought to know furthermore that inasmuch as the plane was on the water, he had to wait for a banca to take him ashore. Notwithstanding the shouts and warning signals given him from the shore by the representatives of the consignee firm, the plaintiff herein, not being a man of ordinary prudence, hastily left the cabin of the plane, walked along one of the pontoons and directly into the revolving propeller, while the banca which was to take him ashore was still some distance away and the pilot was instructing the boatman to keep it at a safe distance from the plane. Under such circ*mstances, it is not difficult to understand that the plaintiff-appellant acted with reckless negligence in approaching the propeller while it was still in motion, and when the banca was not yet in a position to take him. That the plaintiff-appellant’s negligence alone was the direct cause of the accident, is so clear that it is not necessary to cite authoritative opinions to support the conclusion that the injury to his right arm and the subsequent amputation thereof were due entirely and exclusively to his own imprudence and not the slightest negligence attributable to the defendant entity or to its agents. Therefore, he alone should suffer the consequences of his act.

B.

CONTRIBUTORY NEGLIGENCE.

Article 2179 of the New Civil Code is also clear that if the plaintiff’s negligence is merely contributory, the plaintiff is not barred from recovering from the defendant. This statutory rule is reiterated in Article 2214 which states that “in quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he may recover.” What is applicable then in this jurisdiction is what is known in common law as the rule of comparative negligence. In the broadest sense, comparative negligence rules include any rule under which the relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be responsible for his negligence. (57 Am. Jur. 2d 847). The rules involve apportionment of damages. Under the “pure” type of comparative negligence, the plaintiff’s contributory negligence does not operate to bar his recovery

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altogether but does serve to reduce his damage in proportion to his fault. (Prosser and Keeton, p. 472). At the time the Civil Code was enacted, the prevailing rule in the United States was the doctrine of contributory negligence. (Rakes vs. Atlantic Gulf and Pacific Co., supra). However, as of 1991, the prevailing rule was already the doctrine of comparative negligence. (Epstein, Torts, 1995 Ed.). Under the common law doctrine of contributory negligence, the negligence of the defendant which contributes to his injury completely bars recovery. On the other hand, the doctrine of comparative negligence does not completely bar recovery but merely mitigates the same. In this jurisdiction, contributory negligence of the plaintiff merely results in mitigation of liability. Under this rule, contributory negligence is defined as conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. (Valenzuela vs. Court of Appeals, supra at 113). It was explained in Rakes vs. Atlantic Gulf and Pacific Co. that: “Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace it. This produced the event giving occasion for damages — that is, sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through this act or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.”

The court is free to determine the extent of the mitigation of the defendant’s liability depending on the circ*mstances. Jurisprudence

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shows that the Supreme Court had sustained various percentages of mitigation. Thus, the Supreme Court sustained a mitigation of fifty percent (50%) in Rakes vs. AG&P, twenty percent (20%) in Phoenix Construction, Inc. vs. Intermediate Appellate Court (148 SCRA 353 [1987]) and LBC Air Cargo, Inc. vs. Court of Appeals (241 SCRA 619 [1995]) and forty percent (40%) in Bank of Philippine Islands vs. Court of Appeals (216 SCRA 51 [1992]) and Phil. Bank of Commerce vs. Court of Appeals (269 SCRA 695 [1997]). CASES: M. H. RAKES vs. THE ATLANTIC GULF AND PACIFIC COMPANY G.R. No. L-1719. January 23, 1907 This is an action for damages. The plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was at work transporting iron rails from a barge in the harbor to the company’s yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has proved that there were two immediately following one another, upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from slipping off. According to the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water’s edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at about the knee. This first point for the plaintiff to establish was that the accident happened through the negligence of the defendant. The detailed description by the defendant’s witnesses of the construction and quality of the track proves that it was up to the general stranded of tramways of that character, the foundation consisting on land of blocks or crosspieces of wood, by 8 inches thick and from 8 to 10 feet long laid, on the surface of the ground, upon which at a right angle rested stringers of the same thickness, but from 24 to 30 feet in length. On the across the stringers the parallel with the blocks were the ties to which the tracks were fastened. After the road reached the water’s edge, the blocks or crosspieces were replaced with pilling, capped by timbers extending from one side to the other. The tracks were each about 2 feet wide and the two inside rails of the parallel tracks about 18 inches apart. It was admitted that there were no side pieces or guards on the car; that where no ends of the rails of the track met each other and also where the stringers joined, there were no fish plates. The defendant has not effectually overcome the plaintiff’s proof that the joints between the rails were immediately above

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the joints between the underlying stringers. The cause of the sagging of the tracks and the breaking of the tie, which was the immediate occasion of the accident, is not clear in the evidence, but is found by the trial court and is admitted in the briefs and in the argument to have been the dislodging of the crosspiece or piling under the stringer by the water of the bay raised by a recent typhoon. The superintendent of the company attributed it to the giving way of the block laid in the sand. No effort was made to repair the injury at the time of the occurrence. According to plaintiff’s witnesses, a depression of the track, varying from one half inch to one inch and a half, was thereafter apparent to the eye, and a fellow workman of the plaintiff swears that the day before the accident he called the attention of McKenna, the foreman, to it and asked by simply straightening out the crosspiece, resetting the block under the stringer and renewing the tie, but otherwise leaving the very same timbers as before. It has not proven that the company inspected the track after the typhoon or had any proper system of inspection. In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as the depression in it became visible. It is upon the failure of the defendant to repair the weakened track, after notice of its condition, that the judge below based his judgment. This case presents many important matters for our decision, and first among them is the standard of duty which we shall establish in our jurisprudence on the part of employees toward employees. The lack or the harshness of legal rules on this subject has led many countries to enact designed to put these relations on a fair basis in the form of compensation or liability laws or the institution of insurance. In the absence of special legislation we find no difficulty in so applying the general principles of our law as to work out a just result.

Article 1092 of the Civil Code provides:

“Civil obligations, arising from crimes or misdemeanors, shall be governed by the provisions of the Penal Code.”

And Article 568 of the latter code provides:

“He who shall execute through reckless negligence an act that if done with malice would constitute a grave crime, shall be punished.”

And Article 590 provides that the following shall be punished:

“4. Those who by simple imprudence or negligence, without committing any infraction of regulations, shall cause an injury which, had malice intervened, would have constituted a crime or misdemeanor.”

And finally by Articles 19 and 20, the liability of owners and employers

DEFENSES IN NEGLIGENCE CASES

for the faults of their servants and representatives is declared to be civil and subsidiary in its character. It is contended by the defendant, as its first defense to the action, that the necessary conclusion from these collated laws is that the remedy for injuries through negligence lies only in a criminal action in which the official criminally responsible must be made primarily liable and his employer held only subsidiarily to him. According to this theory the plaintiff should have procured the arrest of the representative of the company accountable for not repairing the tract, and on his prosecution a suitable fine should have been imposed, payable primarily by him and secondarily by his employer. This reasoning misconceived the plan of the Spanish codes upon this subject. Article 1093 of the Civil Code makes obligations arising from faults or negligence not punished by the law, subject to the provisions of Chapter 11 of Title XVI. Section 1902 of that chapter reads: “A person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. “SEC. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and omissions, but also for those of the persons for whom they should be responsible. “The father, and on his death or incapacity, the mother, is liable for the damages caused by the minors who live with them.

x x x

x x x

xxx

“Owners or directors of an establishment or enterprise are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or in the performance of their duties.

x x x

x x x

xxx

“The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damages.’’ As an answer to the argument urged in this particular action it may be sufficient to point out that nowhere in our general statutes is the employer penalized for failure to provide or maintain safe appliances for his workmen. His obligation therefore is one “not punished by the law” and falls under civil rather than criminal jurisprudence. But the answer may be a broader one. We should be reluctant, under any conditions, to adopt a forced construction of these scientific codes, such as is proposed by the defendant, that would rob some of these articles of effect, would shut out litigants their will from the civil courts, would make the assertion of their rights dependent upon the selection for prosecution of the proper criminal offender, and render recovery doubtful by reason of the strict rules of proof prevailing in criminal actions. Even if these articles had always stood alone, such a construction would be unnecessary, but clear light is thrown upon their meaning by the provisions

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of the Law of Criminal Procedure of Spain (Ley de Enjuiciamiento Criminal), which, though never in actual force in these Islands, was formerly given a suppletory or explanatory effect. Under Article 111 of this law, both classes of action, civil and criminal, might be prosecuted jointly or separately, but while the penal action was pending the civil was suspended. According to Article 112, the penal action once started, the civil remedy should be sought therewith, unless it had been waived by the party injured or been expressly reserved by him for civil proceedings for the future. If the civil action alone was prosecuted, arising out of a crime that could be enforced only on private complaint, the penal action thereunder should be extinguished. These provisions are in harmony with those of Articles 23 and 133 of our Penal Code on the same subject. An examination of this topic might be carried much further, but the citations of these articles suffices to show that the civil liability was not intended to be merged in the criminal nor even to be suspended thereby, except as expressly provided by law. Where an individual is civilly liable for a negligent act or omission, it is not required that the injured party should seek out a third person criminally liable whose prosecution must be a condition precedent to the enforcement of the civil right. Under Article 20 of the Penal Code the responsibility of an employer may be regarded as subsidiary in respect of criminal actions against his employees only while they are in process of prosecution, or in so far as they determinate the existence of the criminal act from which liability arises, and his obligation under the civil law and its enforcement in the civil courts is not barred thereby unless by election of the injured person. Inasmuch as no criminal in question, the provisions of the Penal Code can not affect this action. This construction renders it unnecessary to finally determine here whether this subsidiary civil liability in penal actions survived the laws that fully regulated it or has been abrogated by the American civil and criminal procedure now in force in the Philippines. The difficulty in construing the articles of the code above-cited in this case appears from the briefs before us to have arisen from the interpretation of the words of Article 1093, “fault or negligence not punished by law,” as applied to the comprehensive definition of offenses in Articles 568 and 590 of the Penal Code. It has been shown that the liability of an employer arising out of his relation to his employee who is the offender is not to be regarded as derived from negligence punished by the law, within the meaning of Articles 1092 and 1093. More than this, however, it can not be said to fall within the class of acts unpunished by the law, the consequences of which are regulated by Articles 1902 and 1903 of the Civil Code. The acts to which these articles are applicable are understood to be those and growing out of preexisting duties of the parties to one another. But were relations already formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to Articles 1101, 1103, and 1104, of the same code. A typical application of the distinction may be found in the consequences of a railway accident due to defective machinery supplied by the employer.

DEFENSES IN NEGLIGENCE CASES

His liability to his employee would arise out of the contract of employment, that to the passengers out of the contract for passage. While to that injured bystander would originate in the negligent act itself. This distinction is thus clearly set forth by Manresa in his commentary on Article 1093. “We are with reference to such obligations, that culpa, or negligence, may be understood in two different senses; either as culpa, substantive and independent, which on account of its origin arises in an obligation between two persons not formerly bound by any other obligation; or as an incident in the performance of an obligation; or as already existed, which can not be presumed to exist without the other, and which increases the liability arising from the already existing obligation. “Of these two species of culpa the first one mentioned, existing by itself, may be also considered as a real source of an independent obligation, and, as chapter 2, title 16 of this book of the code is devoted to it, it is logical to presume that the reference contained in Article 1093 is limited thereto and that it does not extend to those provisions relating to the other species of culpa (negligence), the nature of which we will discuss later. (Vol. 8, p. 29). And in his commentary on Articles 1102 and 1104 he says that these two species of negligence may be somewhat inexactly described as contractual and extra-contractual, the latter being the culpa aquiliana of the Roman law and not entailing so strict an obligation as the former. This terminology is unreservedly accepted by Sanchez-Roman (Derecho Civil, fourth section, Chapter XI, Article II, No. 12), and the principle stated is supported be decisions of the supreme court of Spain, among them those of November 20, 1896 (80 Jurisprudencia Civil, No. 151), and June 27, 1894 (75 Jurisprudencia Civil, No. 182). The contract is one for hire and not one of mandate. (March 10, 1897, 81 Jurisprudencia Civil, No. 107). Spanish Jurisprudencia prior to the adoption of the Working Men’s Accident Law of January 30, 1900, throws uncertain light on the relation between master and workman. Moved by the quick industrial development of their people, the courts of France early applied to the subject the principles common to the law of both countries, which are lucidly discussed by the leading French commentators. The original French theory, resting the responsibility of owners of industrial enterprises upon Articles 1382, 1383, and 1384 of the Code Napoleon, corresponding in scope to Articles 1902 and 1903 of the Spanish Code, soon yielded to the principle that the true basis is the contractual obligation of the employer and employee. (See 18 Dalloz, 196, Title Travail, 331). Later the hardships resulting from special exemptions inserted in contracts for employment led to the discovery of a third basis for liability in an article of the French Code making the possessor of any object answerable for damage done by it while in his charge. Our law having no counterpart of this article, applicable to every kind of object, we need consider neither the theory growing out of it nor that of “professional risk” more recently imposed

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by express legislation, but rather adopting the interpretation of our Civil Code above given, find a rule for this case in the contractual obligation. This contractual obligation, implied from the relation and perhaps so inherent in its nature to be invariable by the parties, binds the employer to provide safe appliances for the use of the employee, thus closely corresponding to English and American Law. On these principles it was the duty of the defendant to build and to maintain its track in reasonably sound condition, so as to protect its workingmen from unnecessary danger. It is plain that in one respect or the other it failed in its duty, otherwise the accident could not have occurred; consequently the negligence of the defendant is established. Another contention of the defense is that the injury resulted to the plaintiff as a risk incident to his employment and, as such, one assumed by him. It is evident that this can not be the case if the occurrence was due to the failure to repair the track or to duly inspect, it for the employee is not presumed to have stipulated that the employer might neglect his legal duty. Nor may it be excused upon the ground that the negligence leading to the accident was that of a fellow-servant of the injured man. It is not apparent to us that the intervention of a third person can relieve the defendant from the performance of its duty nor impose upon the plaintiff the consequences of an act or omission not his own. Sua cuique culpa nocet. This doctrine, known as “the fellow-servant rule,” we are not disposed to introduce into our jurisprudence. Adopted in England by Lord Abinger in the case of Prescott vs. Fowler (3 Meeson & Welsby, 1) in 1837, it has since been effectually abrogated by “the Employers’ Liability Acts” and the “Compensation Law.” The American States which applied it appear to be gradually getting rid of it; for instance, the New York State legislature of 1906 did away with it in respect to railroad companies, and had in hand a scheme for its total abolition. It has never found place in the civil law of continental Europe. (Dalloz, vol. 39, 1858, Title Responsibilite, 630, and vol. 15, 1895, same title, 804. Also more recent instances in Fuzier-Herman, Title Responsibilite Civile, 710). The French Cour de Cassation clearly laid down the contrary principle in its judgment of June 28, 1841, in the case of Reygasse, and has since adhered to it. The most controverted question in the case is that of the negligence of the plaintiff, contributing to the accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with carelessness: First. That having noticed the depression in the track he continued his work; and Second. That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it. As to the first point, the depression in the track might indicate either a serious or a rival difficulty. There is nothing in the evidence to show that the plaintiff did or could see the displaced timber underneath the sleeper. The claim that he must have done so is a conclusion drawn from what is assumed to have been a probable condition of things not before us, rather than a fair

DEFENSES IN NEGLIGENCE CASES

inference from the testimony. While the method of construction may have been known to the men who had helped build the road, it was otherwise with the plaintiff who had worked at this job less than two days. A man may easily walk along a railway without perceiving a displacement of the underlying timbers. The foreman testified that he knew the state of the track on the day of the accident and that it was then in good condition, and one Danridge, a witness for the defendant, working on the same job, swore that he never noticed the depression in the track and never saw any bad place in it. The sagging of the track this plaintiff did perceive, but that was reported in his hearing to the foreman who neither promised nor refused to repair it. His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. On this point we accept the conclusion of the trial judge who found as facts that “the plaintiff did not know the cause of the one rail being lower than the other” and “it does not appear in this case that the plaintiff knew before the accident occurred that the stringers and rails joined in the same place.” Were we not disposed to agree with these findings they would, nevertheless, be binding upon us, because not “plainly and manifestly against the weight of evidence,” as those words of section 497, paragraph 3 of the Code of Civil Procedure were interpreted by the Supreme Court of the United States in the De la Rama case (201 U.S. 303). In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While the judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the front end or to the rails upon it, and further that the circ*mstances in evidence make it clear that the persons necessary to operate the car could not walk upon the plank between the rails and that, therefore, it was necessary for the employees moving it to get hold upon it as best they could, there is no specific finding upon the instruction given by the defendant to its employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in order to get hold upon the car. Therefore, the findings of the judge below leave the conduct of the plaintiff in walking along the side of the loaded car, upon the open ties, over the depressed track, free to our inquiry. While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but were expressly directed by the foreman to do so, both the officers of the company and three of the workmen testify that there was a general prohibition frequently made known to all the gang against walking by the side of the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. On this contradiction of proof we think that the preponderance is in favor of the defendant’s contention to the extent of the general order being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not

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as its primary cause. This conclusion presents sharply the question, What effect is to be given such an act of contributory negligence? Does it defeat a recovery, according to the American rule, or is it to be taken only in reduction of damages? While a few of the American States have adopted to a greater or less extent the doctrine of comparative negligence, allowing a recovery by a plaintiff whose own act contributed to his injury, provided his negligence was slight as compared with that of the defendant, and some others have accepted the theory of proportional damages, reducing the award to a plaintiff in proportion to his responsibility for the accident, yet the overwhelming weight of adjudication establishes the principle in American jurisprudence that any negligence, however slight, on the part of the person injured which is one of the causes proximately contributing to his injury, bars his recovery. (English and American Encyclopedia of law, Titles “Comparative Negligence” and “Contributory Negligence”). In Grant Trunk Railway Company vs. Ives (144 U.S., 408, at page 429) the Supreme Court of the United States thus authoritatively states the present rule of law: “Although the defendant’s’ negligence may have been the primary cause of the injury complained of, yet an action for such injury can not be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured party’s negligence.” There are may cases in the Supreme Court of Spain in which the defendant was exonerated, but when analyzed they prove to have been decided either upon the point that he was not negligent or that the negligence of the plaintiff was the immediate cause of the casualty or that the accident was due to casus fortuitus. Of the first class in the decision of January 26, 1887 (38 Jurisprudencia Criminal, No. 70), in which a railway employee, standing on a car, was thrown therefrom and killed by the shock following the backing up of the engine. It was held that the management of the train and engine being in conformity with proper rules of the company, showed no fault on its part. Of the second class are the decision of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla’s Index of that year; and of the third class the decision of the 4th of June, 1888 (64 Jurisprudencia Civil, No. 1), in which the breaking down of plaintiff’s dam by the logs of the defendant impelled against it by the Tajo River, was held due to a freshet as a fortuitous cause.

The decision of the 7th of March, 1902, on which stress has been laid,

DEFENSES IN NEGLIGENCE CASES

rested on two bases, one, that the defendant was not negligent, because expressly relieved by royal order from the common obligation imposed by the police law of maintaining a guard at the road crossing; the other, because the act of the deceased in driving over level ground with unobstructed view in front of a train running at speed, with the engine whistle blowing was the determining cause of the accident. It is plain that the train was doing nothing but what it had a right to do and that the only fault lay with the injured man. His negligence was not contributory, it was sole, and was of such an efficient nature that without it no catastrophe could have happened. On the other hand, there are many cases reported in which it seems plain that the plaintiff sustaining damages was not free from contributory negligence; for instance, the decision of the 14th of December, 1894 (76 Jurisprudencia Civil, No. 134), in which the owner of a building was held liable for not furnishing protection to workmen engaged in hanging out flags, when the latter must have perceived beforehand the danger attending the work. None of those cases define the effect to be given the negligence of a plaintiff which contributed to his injury as one of its causes, though not the principal one, and we are left to seek the theory of the civil law in the practice of other countries. In France in the case of Marquant, August 20, 1879, the cour de cassation held that the carelessness of the victim did not civilly relieve the person without whose fault the accident could not have happened, but that the contributory negligence of the injured man had the effect only of reducing the damages. The same principle was applied in the case of Recullet, November 10, 1888, and that of Laugier of the 11th of November, 1896. (Fuzier-Herman, Title Responsibilite Cirile, 411, 412.) Of like tenor are citations in Dalloz. (vol. 18, 1806, Title Trail, 363, 364, and vol. 15, 1895, Title Responsibilite, 193, 198). In the Canadian Province of Quebec, which has retained for the most part the French Civil Law, now embodied in a code following the Code Napoleon, a practice in accord with that of France is laid down in many cases collected in the annotations to Article 1053 of the code edited by Beauchamps, 1904. One of these is Luttrell vs. Trottier, reported in La Revue de Jurisprudence, volume 6, page 90, in which the court of Kings bench, otherwise known as the court of appeals, the highest authority in the Dominion of Canada on points of French law, held that contributory negligence did not exonerate the defendants whose fault had been the immediate cause of the accident, but entitled him to a reduction of damages. Other similar cases in the provincial courts have been overruled by appellate tribunals made up of common law judges drawn from other provinces, who have preferred to impose uniformally throughout the Dominion the English theory of contributory negligence. Such decisions throw no light upon the doctrines of the civil law. Elsewhere we find this practice embodied in legislation; for instance, section 2 of Article 2398 of the Code of Portugal reads as follows:

“If in the case of damage there was fault or negligence on the part of

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the person injured or in the part of someone else, the indemnification shall be reduced in the first case, and in the second case it shall be appropriated in proportion to such fault or negligence as provided in paragraphs 1 and 2 of Section 2372.” And in Article 1304 of the Austrian Code provides that the victim who is partly changeable with the accident shall stand his damages in proportion to his fault, but when that proportion is incapable of ascertainment, he shall share the liability equally with the person principally responsible. The principle of proportional damages appears to be also adopted in Article 51 of the Swiss Code. Even in the United States in admirality jurisdictions, whose principles are derived from the civil law, common fault in cases of collision have been disposed of not on the ground of contributory negligence, but on that of equal loss, the fault of the one part being offset against that of the other. (Ralli vs. Troop, 157 U. S. 386; 97). The damage of both being added together and the sum equally divided, a decree is entered in favor of the vessel sustaining the greater loss against the other for the excess of her damages over one-half of the aggregate sum. (The Manitoba, 122 U. S., 97). Exceptional practice appears to prevail in maritime law in other jurisdictions. The Spanish Code of Commerce, Article 827, makes each vessel for its own damage when both are the fault; this provision restricted to a single class of the maritime accidents, falls for short of a recognition of the principle of contributory negligence as understood in American Law, with which, indeed, it has little in common. This is a plain from other articles of the same code; for instance, Article 829, referring to Articles 826, 827, and 828, which provides: “In the cases above mentioned the civil action of the owner against the person liable for the damage is reserved, as well as the criminal liability which may appear.” The rule of the common law, a hard and fast one, not adjustable with respects of the faults of the parties, appears to have grown out the original method of trial by jury, which rendered difficult a nice balancing of responsibilities and which demanded an inflexible standard as a safeguard against too ready sympathy for the injured. It was assumed that an exact measure of several concurring faults was unattainable. “The reason why, in cases of mutual concurring negligence, neither party can maintain an action against the other, is, not the wrong of the one is set off against the wrong of the other; it that the law can not measure how much of the damage suffered is attributable to the plaintiff’s own fault. If he were allowed to recover, it might be that he would obtain from the other party compensation for his own misconduct.” (Heil vs. Glanding, 42 Penn. St. Rep., 493, 499). “The parties being mutually in fault, there can be no appointment of damages. The law has no scales to determine in such cases whose wrongdoing weighed most in the compound that occasioned the mischief.” (Railroad

DEFENSES IN NEGLIGENCE CASES

vs. Norton, 24 Penn. St. 565, 469). Experience with jury trials in negligence cases has brought American courts to review to relax the vigor of the rule by freely exercising the power of setting aside verdicts deemed excessive, through the device of granting new trials, unless reduced damages are stipulated for, amounting to a partial revision of damages by the courts. It appears to us that the control by the court of the subject matter may be secured on a moral logical basis and its judgment adjusted with greater nicety to the merits of the litigants through the practice of offsetting their respective responsibilities. In the civil law system the desirable end is not deemed beyond the capacity of its tribunals. Whatever may prove to be the doctrine finally adopted in Spain or in other countries under the stress and counter stress of novel schemers of legislation, we find the theory of damages laid down in the judgment the most consistent with the history and the principles of our law in these Islands and with its logical development. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing under review was the displacement of the crosspiece or the failure to replace it. This produced the event giving occasion for damages — that is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be remanded to the court below for proper action. So ordered. PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO G.R. No. L-65295, March 10, 1987

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FELICIANO, J.: In the early morning of 15 November 1975 — at about 1:30 a.m. — private respondent Leonardo Dionisio was on his way home — he lived in 1214B Zamora Street, Bangkal, Makati — from a co*cktails-and-dinner meeting with his boss, the general manager of a marketing corporation. During the co*cktails phase of the evening, Dionisio had taken “a shot or two” of liquor. Dionisio was driving his Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched his headlights on “bright” and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix Construction Inc. (“Phoenix”), was parked on the right hand side of General Lacuna Street (i.e., on the right hand side of a person facing in the same direction toward which Dionisio’s car was proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming traffic. There were no lights nor any socalled “early warning” reflector devices set anywhere near the dump truck, front or rear. The dump truck had earlier that evening been driven home by petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix, in view of work scheduled to be carried out early the following morning. Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a “nervous breakdown” and loss of two gold bridge dentures. Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and Carbonel, on the other hand, countered that the proximate cause of Dionisio’s injuries was his own recklessness in driving fast at the time of the accident, while under the influence of liquor, without his headlights on and without a curfew pass. Phoenix also sought to establish that it had exercised due care in the selection and supervision of the dump truck driver. [The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the latter to pay damages. Phoenix and Carbonel appealed to the Intermediate Appellate Court and the latter affirmed the decision of the trial court but modified the award of damages.] xxx This decision of the Intermediate Appellate Court is now before us on a petition for review.

DEFENSES IN NEGLIGENCE CASES

Both the trial court and the appellate court had made fairly explicit findings of fact relating to the manner in which the dump truck was parked along General Lacuna Street on the basis of which both courts drew the inference that there was negligence on the part of Carbonel, the dump truck driver, and that this negligence was the proximate cause of the accident and Dionisio’s injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel and Phoenix that the true legal and proximate cause of the accident was not the way in which the dump truck had been parked but rather the reckless way in which Dionisio had driven his car that night when he smashed into the dump truck. The Intermediate Appellate Court in its questioned decision casually conceded that Dionisio was “in some way, negligent” but apparently failed to see the relevance of Dionisio’s negligence and made no further mention of it. We have examined the record both before the trial court and the Intermediate Appellate Court and we find that both parties had placed into the record sufficient evidence on the basis of which the trial court and the appellate court could have and should have made findings of fact relating to the alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and Carbonel contend that if there was negligence in the manner in which the dump truck was parked, that negligence was merely a “passive and static condition” and that private respondent Dionisio’s recklessness constituted an intervening, efficient cause determinative of the accident and the injuries he sustained. The need to administer substantial justice as between the parties in this case, without having to remand it back to the trial court after eleven years, compels us to address directly the contention put forward by the petitioners and to examine for ourselves the record pertaining to Dionisio’s alleged negligence which must bear upon the liability, or extent of liability, of Phoenix and Carbonel. [Initially, the Supreme Court found the following facts to have been established: (a) Private respondent Dionisio did not have a curfew pass valid and effective for that eventful night; (b) Dionisio was driving fast or speeding just before the collision with the dump truck; (c) Dionisio had purposely turned off his car’s headlights before contact with the dump truck so that he will not be detected by the policemen who were manning a check-point; and (d) Dionisio was intoxicated at the time of the accident.] The conclusion we draw from the factual circ*mstances outlined above is that private respondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should have been. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus, did not see the dump truck that was parked askew and sticking out onto the road lane. Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that the legal and proximate cause of the accident and of Dionisio’s injuries was the wrongful or negligent manner in which the dump truck was parked — in other words, the negligence of petitioner Carbonel. That there was a reasonable relationship between petitioner

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Carbonel’s negligence on the one hand and the accident and respondent’s injuries on the other hand, is quite clear. Put in a slightly different manner, the collision of Dionisio’s car with the dump truck was a natural and foreseeable consequence of the truck driver’s negligence. The petitioners, however, urge that the truck driver’s negligence was merely a “passive and static condition” and that private respondent Dionisio’s negligence was an “efficient intervening cause,” and that consequently Dionisio’s negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel. We note that the petitioners’ arguments are drawn from a reading of some of the older cases in various jurisdictions in the United States but we are unable to persuade ourselves that these arguments have any validity for our jurisdiction. We note, firstly, that even in the United States, the distinctions between “cause” and “condition” which the petitioners would have us adopt have already been “almost entirely discredited.” xxx We believe, secondly, that the truck driver’s negligence far from being a “passive and static condition” was rather an indispensable and efficient cause. The collision between the dump truck and the private respondent’s car would in all probability not have occurred had the dump truck not been parked askew without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna Street and for having so created this risk, the truck driver must be held responsible. In our view, Dionisio’s negligence, although later in point of time than the truck driver’s negligence and therefore closer to the accident, was not an efficient intervening or independent cause. What the petitioners describe as an “intervening cause” was no more than a foreseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck. In other words, the petitioner truck driver owed a duty to private respondent Dionisio and others similarly situated not to impose upon them the very risk the truck driver had created. Dionisio’s negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the juris vinculum of liability. xxx We hold that private respondent Dionisio’s negligence was “only contributory,” that the “immediate and proximate cause” of the injury remained the truck driver’s “lack of due care” and that consequently respondent Dionisio may recover damages though such damages are subject to mitigation by the courts. (Article 2179, Civil Code of the Philippines). Petitioners also ask us to apply what they refer to as the “last clear chance” doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the “last clear chance” of avoiding the accident and hence, his injuries, and that Dionisio

DEFENSES IN NEGLIGENCE CASES

having failed to take that “last clear chance” must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule — that of contributory negligence. The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff’s negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. Is there perhaps a general concept of “last clear chance” that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff’s or the defendant’s — was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like “last” or “intervening” or “immediate.” The relative location in the continuum of time of the plaintiff’s and the defendant’s negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver’s own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the foreseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners’ proposition must tend to weaken the very bonds of society. Petitioner Carbonel’s proven negligence creates a presumption of negligence on the part of his employer Phoenix in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circ*mstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the

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part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. Turning to the award of damages and taking into account the comparative negligence of private respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other hand, we believe that the demands of substantial justice are satisfied by allocating most of the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney’s fees and costs, shall be borne by private respondent; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily liable therefor to the former. The award of exemplary damages and attorney’s fees and costs shall be borne exclusively by the petitioners. Phoenix is of course entitled to reimbursem*nt from Carbonel. We see no sufficient reason for disturbing the reduced award of damages made by the respondent appellate court.

2.

IMPUTED CONTRIBUTORY NEGLIGENCE

Negligence is imputed if the actor is different from the person who is being made liable. As applied to contributory negligence, the defendant will be subject to mitigated liability even if the plaintiff was not himself personally negligent but because the negligence of another is imputed to the plaintiff. This rule is applicable where the negligence was on the part of the person for whom the plaintiff is responsible, and especially, by negligence of an associate in the transaction where he was injured. (Reyes and Puno, Outline of Phil. Civil Law, Vol. 6, p. 169). The Supreme Court explained in Phil. Commercial Intl. Bank, et al. v. Court of Appeals (G.R. No. 121413, Jan. 29, 2001): “On this point, jurisprudence regarding the imputed negligence of employer in a master-servant relationship is instructive. Since a master may be held for his servant’s wrongful act, the law imputes to the master the act of the servant, and if that act is negligent or wrongful and proximately results in injury to a third person, the negligence or wrongful conduct is the negligence or wrongful conduct of the master, for which he is liable. The general rule is that if the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latter’s negligence is imputed to his superior and will defeat the superior’s action against the third person, assuming, of course that the contributory negligence was the proximate cause of the injury of which complaint is made.”

The Supreme Court ruled in Yamada vs. The Manila Railroad Co. (33 Phil. 8 [1915]), that negligence of the driver of a taxicab can-

DEFENSES IN NEGLIGENCE CASES

not be imputed to a passenger who hired the vehicle and who gave directions to his destination. In Yamada, the plaintiffs, together with three companions, hired an automobile from the defendant taxicab company for a trip to Cavite Viejo. The automobile was secured at a certain price per hour and was driven and controlled by a chauffeur supplied by the taxicab company. The journey to Cavite Viejo was made without incident but, on the return trip, while crossing the tracts of defendant railroad company in the barrio of San Juan, municipality of Cavite Viejo, the automobile was struck by a train and the plaintiffs were injured. The defendant railroad company argued that the plaintiffs cannot recover for the reason that the negligence of the driver of the automobile, if any, was imputable to them, they having permitted the driver to approach and pass over the railroad crossing without the use of ordinary care and diligence to determine the proximity of a train, and having made no effort to caution or instruct him or compel him to take reasonable care in making the crossing. The Supreme Court rejected such contention explaining that: “x x x We think the better rule, and one more consonant with the weight of authority, is that a person who hires a public automobile and gives the driver directions to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for acts of negligence of the latter or prevented from recovering for injuries suffered from a collision between the automobile and a train, caused by the negligence either of the locomotive engineer or the automobile driver. (Little vs. Hackett, 116 U.S. 366). The theory on which the negligence of the driver has in some instances been imputed to the occupant of the vehicle is that having trusted the driver by selecting the particular conveyance, the plaintiff so far identified himself with the owner and his servant that in case of injury resulting from their negligence, he was considered a party thereto. x x x’’

3.

FORTUITOUS EVENT

Under Article 1174 of the New Civil Code, a person is not liable if the cause of damage was fortuitous; an event which could not be foreseen, or which though foreseen, was inevitable. (Article 2181). Fortuitous event is therefore the same as what is known in the Partidas as caso fortuito — an event which takes place by accident and could not have been foreseen. “Escriche defines caso fortuito as an ‘unexpected event or act of God which could neither be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations,

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lightning, compulsion, insurrections, destruction of buildings by unforeseen accidents and other occurrences of similar nature.” (Lasam vs. Smith, 45 Phil. 657 [1924]). The Supreme Court likewise cites different formulations of the same concept of fortuitous event in Pons y Compania vs. La Compania Maritima (9 Phil. 125, 129 [1907]), cited in Gotesco Investment Corporation vs. Chatto (210 SCRA 18 [1992]) that: “An examination of the Spanish and American authorities concerning the meaning of force majeure shows that the jurisprudence of these two countries practically agree upon the meaning of this phrase. Blackstone, in his Commentaries on English law, defines it as — ‘Inevitable accident or casualty; an accident produced by any physical cause which is irresistible; such as lightning, tempest, perils of the sea, inundation, or earthquake; the sudden illness or death of a person.’ (2 Blackstone’s Commentaries, 122; Story in Bailments, sec. 25). Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor as follows: ‘The event which we could neither foresee nor resist; as, for example, the lightning stoke, hall, inundation, hurricane, public enemy, attack by robbers; Vis major est, says Cayo, ea quae consilio humano neque provideri neque vitari potest. Accident and mitigating circ*mstances.’

Bouvier defines the same as — ‘Any accident due to natural causes, directly, exclusively without human intervention, such as could not have been prevented by any kind of oversight, pains, and care reasonably to have been expected.’ (Law Reports, 1 Common Pleas Division, 423, Law Reports, 10 Exchequer, 255).

co*ckburn, Chief Justice, in a well-considered English case (1 Common Pleas Division, 34, 432), said that where a captain — ‘Uses all the known means to which prudent and experienced captains ordinarily have recourse, he does all that can be reasonably required of him; and if, under such circ*mstances, he is overpowered by storm or other natural agency, he is within the rule which gives immunity from the effects of such vis major.’ The term generally applies, broadly speaking, to natural accidents, such as those caused by lightning, earthquake, tempests, public enemy, etc.”

DEFENSES IN NEGLIGENCE CASES

The essential characteristics of fortuitous event enumerated in Enciclopedia Juridica Espanola are adopted in this jurisdiction: “(1) the cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will; (2) it must be impossible to foresee the event which constitutes the ‘caso fortuito,’ or if it can be foreseen, it must be impossible to avoid; (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor.” (cited in Servando vs. Philippine Steam Navigation Company, 117 SCRA 832 [1982]; Gatchalian vs. Delim, 203 SCRA 126 [1991]; see also Nakpil & Sons vs. Court of Appeals, 144 SCRA 596 [1986]; Vasquez vs. Court of Appeals, 138 SCRA 553; Estrada vs. Consolacion, 71 SCRA 423; Austria vs. Court of Appeals, 39 SCRA 527; Republic of the Philippines vs. Luzon Stevedoring Corp., 21 SCRA 279; Lasam vs. Smith, 45 Phil. 657). The essential characteristics that resulted in the rule that the defendant will not be excused from liability if the fortuitous event is not the sole cause of the injury. In other words, the negligence of the defendant which concurred with the fortuitous event or which resulted in the aggravation of the injury of the plaintiff will make him liable even if there was a fortuitous event. When an act of God combines or concurs with the negligence of the defendant to produce an injury, the defendant is liable if the injury would not have resulted but for his own negligent conduct or omission. The whole occurrence is humanized and removed from the rules applicable to acts of God. (National Power Corporation vs. The Court of Appeals, 222 SCRA 415 [1993]; National Power Corp. vs. Court of Appeals, 211 SCRA 162 [1992]; Ilocos Norte Electric Company vs. Court of Appeals, 179 SCRA 5 [1989]; National Power Corporation vs. Court of Appeals, 161 SCRA 334 [1988]; Juan F. Nakpil & Sons vs. Court of Appeals, supra, citing Fish & Elective Co. vs. Phil. Motors, 55 Phil. 129; Tucker vs. Milan, 49 O.G. 4379; Limpanco & Sons vs. Yanco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657; Gotesco Investment Corp. vs. Chatto, supra; see also 38 Am. Jur., p. 649). Nevertheless, it is believed that even if the defendant is still liable, courts may equitably mitigate the damages if the loss, even in part, would have resulted in any event because of the fortuitous event. (Article 2215[4], New Civil Code). Otherwise stated, any aggravation of the injury due to fortuitous event should be taken into consideration in the assessment of liability of the defendant.

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CASES: NATIONAL POWER CORPORATION, et al. vs. THE COURT OF APPEALS, GAUDENCIO C. RAYO, et al. 222 SCRA 415 G.R. Nos. 103442-45, May 21, 1993 DAVIDE, JR., J.: This present controversy traces its beginnings to four (4) separate complaints for damages filed against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private respondents, sought to recover actual and other damages for the loss of lives and the destruction to property caused by the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978. The flooding was purportedly caused by the negligent release by the defendants of water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained a multi-purpose hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin Chavez was the plant supervisor at the time of the incident in question; 3) despite the defendants’ knowledge, as early as 24 October 1978, of the impending entry of typhoon “Kading,” they failed to exercise due diligence in monitoring the water level at the dam; 4) when the said water level went beyond the maximum allowable limit at the height of the typhoon, the defendants suddenly, negligently and recklessly opened three (3) of the dam’s spillways, thereby releasing a large amount of water which inundated the banks of the Angat River; and 5) as a consequence, members of the household of the plaintiffs, together with their animals, drowned, and their properties were washed away in the evening of 26 October and the early hours of 27 October 1978. In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care, diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC exercised the diligence of a good father in the selection of its employees; 3) written notices were sent to the different municipalities of Bulacan warning the residents therein about the impending release of a large volume of water with the onset of typhoon “Kading” and advising them to take the necessary precautions; 4) the water released during the typhoon was needed to prevent the collapse of the dam and avoid greater damage to people and property; 5) in spite of the precautions undertaken and the diligence exercised, they could still not contain or control the flood that resulted; and 6) the damages incurred by the private respondents were caused by a fortuitous event or force majeure and are in the nature and character of damnum absque injuria. By way of a special affirmative defense, the defendants averred that the NPC cannot be sued because it performs a purely governmental function.

Upon motion of the defendants, a preliminary hearing on the special

DEFENSES IN NEGLIGENCE CASES

defense was conducted. As a result thereof, the trial court dismissed the complaints as against the NPC on the ground that the provision of its charter allowing it to sue and be sued does not contemplate actions based on tort. The parties do not, however, dispute the fact that this Court overruled the trial court and ordered the reinstatement of the complaints as against the NPC. [The lower court rendered a decision dismissing the complaints for lack of sufficient and credible evidence. Consequently, the private respondents appealed therefrom to the respondent Court which reversed the appealed decision and awarded damages in favor of the private respondents.] The foregoing judgment is based on the public respondent’s conclusion that the petitioners were guilty of: “. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in the management and operation of Angat Dam. The unholiness of the hour, the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendantsappellees’ headlessness, slovenliness, and carelessness. The resulting flash flood and inundation of even areas (sic) one (1) kilometer away from the Angat River bank would have been avoided had defendantsappellees prepared the Angat Dam by maintaining in the first place, a water elevation which would allow room for the expected torrential rains.”

This conclusion, in turn, is anchored on its findings of fact, to wit: “As early as October 21, 1978, defendants-appellees knew of the impending onslaught of and imminent danger posed by typhoon ‘Kading.’ For as alleged by defendants-appellees themselves, the coming of said super typhoon was bannered by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as ‘Super Howler to hit R.P.’ The next day, October 26, 1978, said typhoon once again merited a headline in said newspaper as ‘Kading’s Big Blow expected this afternoon.’ (Appellee’s Brief, p. 6). Apart from the newspapers, defendantsappellees learned of typhoon ‘Kading’ through radio announcements. (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).

Defendants-appellees doubly knew that the Angat Dam can safely hold a normal maximum headwater elevation of 217 meters. (Appellees’ Brief, p. 12; Civil Case No. SM-951, Exhibit “I-6”; Civil Case No. SM-953, Exhibit “J-6”; Civil Case No. SM-1247, Exhibit “G-6”). Yet, despite such knowledge, defendants-appellees maintained a reservoir water elevation even beyond its maximum and safe level, thereby giving no sufficient allowance for the reservoir to contain the rain water that will inevitably be brought by the coming typhoon.

On October 24, 1978, before typhoon ‘Kading’ entered the Philippines

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area of responsibility, water elevation ranged from 217.61 to 217.53, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when typhoon ‘Kading’ entered the Philippine area of responsibility, and public storm signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged from 217.47 to 217.57, with very little opening of the spillways, ranging from 1/2 to 1 meter. On October 26, 1978, when public storm signal number three remained hoisted over Bulacan, the water elevation still remained at its maximum level of 217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2 meters, until at or about midnight, the spillways were suddenly opened at 5 meters, then increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning hours of October 27, 1978, releasing water at the rate of 4,500 cubic meters per second, more or less. On October 27, 1978, water elevation remained at a range of 218.30 to 217.05. (Civil Case No. SM-950, Exhibits “D” and series, “L”, “M”, “N”, and “O” and Exhibits “3” and “4”; Civil Case No. SM-951, Exhibits “H” and “H-1”; Civil Case No. SM-953, Exhibits “I” and “I-1”; Civil Case No. SM-1247, Exhibits “F” and “F-1”).

x x x

x x x

xxx

From the mass of evidence extant in the record, We are convinced, and so hold that the flash flood on October 27, 1978, was caused not by rain waters (sic), but by stored waters (sic) suddenly and simultaneously released from the Angat Dam by defendants-appellees, particularly from midnight of October 26, 1978 up to the morning hours of October 27, 1978.” The appellate court rejected the petitioners’ defense that they had sent “early warning written notices” to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24 October 1978 and which read: “TO ALL CONCERN (sic): ‘Please be informed that at the present our reservoir (dam) is full and that we have been releasing water intermittently for the past several days. ‘With the coming of typhoon ‘Rita’ (Kading) we expect to release greater (sic) volume of water, if it pass (sic) over our place. ‘In view of this kindly advise people residing along Angat River to keep alert and stay in safe places. ‘BENJAMIN L. CHAVEZ ‘Power Plant Superintendent” because: “Said notice was delivered to the ‘towns of Bulacan’ on October 26, 1978 by defendants-appellees’ driver, Leonardo Nepomuceno. (Civil Case No. SM-950, TSN, Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN,

DEFENSES IN NEGLIGENCE CASES

Leonardo Nepomuceno, March 7, 1985, pp. 10-12). Said notice is ineffectual, insufficient and inadequate for purposes of the opening of the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did not prepare or warn the persons so served, for the volume of water to be released, which turned out to be of such magnitude, that residents near or along the Angat River, even those one (1) kilometer away, should have been advised to evacuate. Said notice, addressed ‘TO ALL CONCERN (sic),’ was delivered to a policeman (Civil Case No. SM-950, TSN, Leonardo Nepomuceno, March 7, 1985, pp. 10-12 and Exhibit “2-A”) for the municipality of Norzagaray. Said notice was not thus addressed and delivered to the proper and responsible municipal officials who could have disseminated the warning to the residents directly affected. As for the municipality of Sta. Maria, where plaintiffs-defendants in Civil Case No. SM-1246 reside, said notice does not appear to have been served.” Relying on Juan F. Nakpil & Sons vs. Court of Appeals, public respondent rejected the petitioners’ plea that the incident in question was caused by force majeure and that they are, therefore, not liable to the private respondents for any kind of damage — such damage being in the nature of damnum absque injuria. The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment filed by the private respondents, were denied by the public respondent in its Resolution of 27 December 1991.

Petitioners thus, filed the instant petition on 21 February 1992. xxx

These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power Corporation, et al. vs. Court of Appeals, et al., which this Court decided on 3 July 1992. The said case involved the very same incident subject of the instant petition. In no uncertain terms, We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs therein — who were similarly situated as the private respondents herein — was the negligence of the petitioners, and that the 24 October 1978 “early warning notice” supposedly sent to the affected municipalities, the same notice involved in the case at bar, was insufficient. We thus, cannot now rule otherwise not only because such a decision binds this Court with respect to the cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which resulted in the loss of lives and the destruction to property in both cases, but also because of the fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the parties in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as conclusively established that indeed, the petitioners were guilty of “patent gross and evident lack of foresight, imprudence and negligence in the management and operation of Angat Dam,” and that “the extent of the opening of the spillways, and the magnitude of the water released, are all but products of defendants-appellees’ headlessness, slovenliness, and carelessness.” Its findings and conclusions are binding upon Us, there being no showing of the

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existence of any of the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive upon this Court. Elsewise stated, the challenged decision can stand on its own merits independently of Our decision in G.R. No. 96410. In any event, We reiterate here Our pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals, is still good law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In the Nakpil case, We held: “To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach of an obligation due to an ‘act of God,’ the following must concur: (a) the cause of the breach of the obligation must be independent of the will of the debtor; (b) the event must be either unforeseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the debtor must be free from any participation in, or aggravation of the injury to the creditor. (Vasquez vs. Court of Appeals, 138 SCRA 553; Estrada vs. Consolacion, 71 SCRA 423; Austria vs. Court of Appeals, 39 SCRA 527; Republic of the Phil. vs. Luzon Stevedoring Corp., 21 SCRA 279; Lasam vs. Smith, 45 Phil. 657). Thus, if upon the happening of a fortuitous event or an act of God, there concurs a corresponding fraud, negligence, delay or violation or contravention in any manner of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which results in loss or damage, the obligor cannot escape liability. The principle embodied in the act of God doctrine strictly requires that the act must be one occasioned exclusively by the violence of nature and all human agencies are to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175). Thus, it has been held that when the negligence of a person concurs with an act of God in producing a loss, such person is not exempt from liability by showing that the immediate cause of the damage was the act of God. To be exempt from liability for loss because of an act of God, he must be free from any previous negligence or misconduct by which that loss or damage may have been occasioned. (Fish & Elective Co. vs. Phil. Motors, 55 Phil. 129; Tucker vs. Milan, 49 O.G. 4379; Limpangco & Sons vs. Yangco Steamship Co., 34 Phil. 594, 604; Lasam vs. Smith, 45 Phil. 657).” Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape liability for the loss or damage sustained by the private respondents since they, the petitioners, were guilty of negligence. The event then was not occasioned exclusively by an act of God or force majeure; a human factor — negligence or imprudence — had intervened. The effect then of the force majeure in question may be deemed to have, even if only partly, resulted from the participation of man. Thus, the whole occurrence

DEFENSES IN NEGLIGENCE CASES

was thereby humanized, as it were, and removed from the rules applicable to acts of God.

SOUTHEASTERN COLLEGE, INC. vs. COURT OF APPEALS, et al. G.R. No. 126389, July 10, 1998 Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision promulgated on July 31, 1996, and Resolution dated September 12, 1996 of the Court of Appeals, in CA-G.R. No. 41422, entitled “Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc.,” which reduced the moral damages awarded below from P1,000,000.00 to P200,000.00. The Resolution under attack denied petitioner’s motion for reconsideration. Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the morning, a powerful typhoon “Saling” hit Metro Manila. Buffeted by very strong winds, the roof of petitioner’s building was partly ripped off and blown away, landing on and destroying portions of the roofing of private respondents’ house. After the typhoon had passed, an ocular inspection of the destroyed buildings was conducted by a team of engineers headed by the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latter’s Report 5 dated October 18, 1989 stated, as follows: “5. One of the factors that may have led to this calamitous event is the formation of the buildings in the area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general formation of the buildings becomes a big funnel-like structure, the one situated along College Road, receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing, those located on both ends of the building, which remained intact after the storm. 6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural trusses is the improper anchorage of the said trusses to the roof beams. The “diameter steel bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses, thus, those trusses are not anchored at all to the roof beams.” It then recommended that “to avoid any further loss and damage to lives, limbs and property of persons living in the vicinity,” the fourth floor of subject school building be declared as a “structural hazard.” In their Complaint before the Regional Trial Court of Pasay City, Branch 117, for damages based on culpa aquiliana, private respondents alleged that the damage to their house rendered the same uninhabitable,

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forcing them to stay temporarily in others’ houses. And so they sought to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as exemplary damages and, P100,000.00, for and as attorney’s fees; plus costs. In its Answer, petitioner averred that subject school building had withstood several devastating typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it has not been remiss in its responsibility to see to it that said school building, which houses school children, faculty members, and employees, is “in tip-top condition,” and furthermore, typhoon “Saling” was “an act of God and therefore beyond human control” such that petitioner cannot be answerable for the damages wrought thereby, absent any negligence on its part. [The trial court, giving credence to the ocular inspection report to the effect that subject school building had a “defective roofing structure,” found that, while typhoon “Saling” was accompanied by strong winds, the damage to private respondents’ house “could have been avoided if the construction of the roof of (petitioner’s) building was not faulty.” Respondent Court of Appeals affirmed with modification the trial court’s disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00.] The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the building of private respondents resulting from the impact of the falling portions of the school building’s roof ripped off by the strong winds of typhoon “Saling,” was, within legal contemplation, due to fortuitous event? If so, petitioner cannot be held liable for the damages suffered by the private respondents. This conclusion finds support in Article 1174 of the Civil Code, which provides: “Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.” The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as “an event which takes place by accident and could not have been foreseen.” Escriche elaborates it as “an unexpected event or act of God which could neither be foreseen nor resisted.” Civilist Arturo M. Tolentino adds that “[f]ortuitous events may be produced by two general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc., and (2) by the act of man, such as an armed invasion, attack by bandits, governmental prohibitions, robbery, etc.” In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from any previous negligence or misconduct by reason of which the loss may have been occasioned. An act of God cannot be invoked for the protection of a person who has been guilty of gross negligence in not trying to forestall its possible adverse consequences. When a person’s negligence concurs with an act of God in producing damage or

DEFENSES IN NEGLIGENCE CASES

injury to another, such person is not exempt from liability by showing that the immediate or proximate cause of the damage or injury was a fortuitous event. When the effect is found to be partly the result of the participation of man — whether it be from active intervention, or neglect, or failure to act — the whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. In the case under consideration, the lower court accorded full credence to the finding of the investigating team that subject school building’s roofing had “no sufficient anchorage to hold it in position especially when battered by strong winds.” Based on such finding, the trial court imputed negligence to petitioner and adjudged it liable for damages to private respondents. After a thorough study and evaluation of the evidence on record, this Court believes otherwise, notwithstanding the general rule that factual findings by the trial court, especially when affirmed by the appellate court, are binding and conclusive upon this Court. After a careful scrutiny of the records and the pleadings submitted by the parties, we find exception to this rule and hold that the lower courts misappreciated the evidence proffered. There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be foreseen but is unavoidable despite any amount of foresight, diligence or care. In order to be exempt from liability arising from any adverse consequence engendered thereby, there should have been no human participation amounting to a negligent act. In other words, the person seeking exoneration from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that degree of care, precaution, and vigilance which the circ*mstances justly demand, or the omission to do something which a prudent and reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs, would do. From these premises, we proceed to determine whether petitioner was negligent, such that if it were not, the damage caused to private respondents’ house could have been avoided? At the outset, it bears emphasizing that a person claiming damages for the negligence of another has the burden of proving the existence of fault or negligence causative of his injury or loss. The facts constitutive of negligence must be affirmatively established by competent evidence, not merely by presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability of petitioner, merely relied on the aforementioned report submitted by a team which made an ocular inspection of petitioner’s school building after the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or viewing. What is visual to the eye though, is not always reflective of the real cause behind. For instance, one who hears a gunshot and then sees a wounded person, cannot always definitely conclude that a third person shot the victim. It could have been self-inflicted or caused accidentally by a stray bullet. The relationship of cause and effect must be clearly shown.

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In the present case, other than the said ocular inspection, no investigation was conducted to determine the real cause of the partial unroofing of petitioner’s school building. Private respondents did not even show that the plans, specifications and design of said school building, were deficient and defective. Neither did they prove any substantial deviation from the approved plans and specifications. Nor did they conclusively establish that the construction of such building was basically flawed. On the other hand, petitioner elicited from one of the witnesses of private respondents, city building official Jesus Reyna, that the original plans and design of petitioner’s school building were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement before the construction of any building to obtain a permit from the city building official (city engineer, prior to the passage of the Building Act of 1977). In like manner, after construction of the building, a certification must be secured from the same official attesting to the readiness for occupancy of the edifice. Having obtained both building permit and certificate of occupancy, these are, at the very least, prima facie evidence of the regular and proper construction of subject school building. Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon “Saling,” the same city official gave the go-signal for such repairs — without any deviation from the original design — and subsequently, authorized the use of the entire fourth floor of the same building. These only prove that subject building suffers from no structural defect, contrary to the report that its “U-shaped” form was “structurally defective.” Having given his unqualified imprimatur, the city building official is presumed to have properly performed his duties in connection therewith. In addition, petitioner presented its vice president for finance and administration who testified that an annual maintenance inspection and repair of subject school building were regularly undertaken. Petitioner was even willing to present its maintenance supervisor to attest to the extent of such regular inspection but private respondents agreed to dispense with his testimony and simply stipulated that it would be corroborative of the vice president’s narration. Moreover, the city building official, who has been in the city government service since 1974, admitted in open court that no complaint regarding any defect on the same structure has ever been lodged before his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are common occurrences in this country. If subject school building’s roofing was not firmly anchored to its trusses, obviously, it could not have withstood long years and several typhoons even stronger than “Saling.” In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the construction and maintenance of its school building in question and that typhoon “Saling” was the proximate cause of the damage suffered by private respondents’ house.

DEFENSES IN NEGLIGENCE CASES

With this disposition on the pivotal issue, private respondents’ claim for actual and moral damages as well as attorney’s fees must fail. Petitioner cannot be made to answer for a purely fortuitous event. More so because no bad faith or willful act to cause damage was alleged and proven to warrant moral damages. Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually incurred. It is not enough that the damage be capable of proof but must be actually proved with a reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever compensatory damages are borne. Private respondents merely submitted an estimated amount needed for the repair of the roof of their subject building. What is more, whether the “necessary repairs” were caused ONLY by petitioner’s alleged negligence in the maintenance of its school building, or included the ordinary wear and tear of the house itself, is an essential question that remains indeterminable.

4.

ASSUMPTION OF RISK

A. REQUISITES.

The doctrine of assumption of risk is consistent with the Latin maxim volenti non fit injuria. The doctrine involves three (3) elements or requirements: (1) the plaintiff must know that the risk is present; (2) he must further understand its nature; and that (3) his choice to incur it is free and voluntary. (Prosser and Keeton, p. 487). In relation to the last requisite, it has been held that the plaintiff is excused from the force of the rule if an emergency is found to exist or if the life or property of another is in peril or when he seeks to rescue his endangered property. (Ilocos Norte Electric Company vs. Court of Appeals, 179 SCRA 5 [1989] citing 65A C.J.S. 301 and Harper and James, “The Law of Torts,’’ 1956 v. 2, p. 1167). Thus, in the Ilocos Norte Electric Company case, the deceased was electrocuted when she ventured out of her house and waded through floodwaters. The defendant company was found to have failed to prevent the fallen lines from causing damage. As a supplier of electricity it was found to have failed to be in constant vigil to prevent or avoid any probable incident that might imperil life or limb. No assumption of risk was ascribed to the deceased because an emergency was at hand as deceased’s property, a source of her livelihood, was faced with an impending loss. Furthermore, the deceased, at the time the fatal incident occurred, was at a place where she had the right to be without regard to defendant’s consent as she was on her way to protect her merchandise.

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B. KINDS.

a.

Express Waiver of the Right to Recover.

The “express consent perspective” contemplates the most basic sense of the doctrine. Under this perspective, there is assumption of risk if the plaintiff, in advance, has expressly waived his right to recover damages for the negligent act of the defendant. He has given his express consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone. For instance, if the plaintiff was warned that it is still dangerous to take the vehicle from the repair shop because the repairs are still untested, there would be an express assumption of risk if he nevertheless took the vehicle from the shop with the express waiver of liability in favor of the proprietor. However, in Pleasantville Development Corporation vs. Court of Appeals (253 SCRA 10, 19 [1996]), the Supreme Court ruled that a person cannot contract away his right to recover damages resulting from negligence. Even if such waiver was made, the same is contrary to public policy and cannot be allowed. Rights can be waived unless the waiver is contrary to law, public order, public policy, morals or good customs, or prejudicial to a third person with a right recognized by law. (citing Art. 6, Civil Code and Canete vs. San Antonio AgroIndustrial Development Corporation, 113 SCRA 723 [1982]). Pleasantville case involved a buyer of a subdivision lot who erroneously built on another’s lot because he was told to do so by the petitioner corporation. One of the defenses invoked by the petitioner corporation was that there was a waiver in the Contract of Sale of the right to recover damages based on negligence. At any rate, it should be noted, that the waiver contemplated here is the waiver of the right to recover before the negligent act was committed. It cannot be stipulated in the contract that one of the parties therein is barred from claiming damages based on negligence. If the waiver was made after the cause of action accrued, the waiver is valid and may be construed as condonation of the obligation.

b.

Implied Assumption.

(1) Dangerous Conditions.

A person who, knowing that he is exposed to a dangerous condition, voluntarily assumes the risk of such dangerous condition may not recover from the defendant who maintained such dangerous conditions. Thus, a person who maintained his house near a railroad track

DEFENSES IN NEGLIGENCE CASES

assumes the usual dangers attendant to the operation of a locomotive. (Rodrigueza vs. Manila Electric Railroad). Similarly, spectators at sports events, customers at amusem*nt parks, and guests who find dangerous conditions when they enter business premises are deemed to have assumed the risk ordinarily attendant thereto, so long as proper warning was made. (Prosser and Keeton, pp. 485-486). CASES: TRANSPORTO vs. MIJARES 1 CAR 2s 860 [1961] On December 23, 1956, plaintiff Antonio Transporto was a checker and sugar analyst of La Carlota-Ponteverdra Sugar Planter’s Association; while defendant Hernani Mihares was a bench chemist of La Carlota Sugar Central. Both had their offices in the Analysis Department of La Carlota Sugar Central, La Carlota Negros Occidental. At about 12:30 noon of the aforesaid date, Alfredo Balo, an employee of the sugar central, called plaintiff’s attention to an unusually big-sized firecracker on the table of Vicente Lim, chief of the Analysis Department. Plaintiff approached the table, examined the firecracker, big in size, thickly covered with cardboard in order to scare the children, and that it was a fake firecracker and would not explode. He further stated that he used to explode bigger-sized firecrackers, and that if held tightly, one would not get hurt by the explosion thereof. His office companions laughed unbelievingly at such remark. Apparently irked by the laughter of his companions, plaintiff challenged them to a bet of P100.00, despite the statement of Vicente Lim, the owner of said object, and of defendant that the firecracker was a real one and would explode. Defendant accepted the bet but for P20.00 only. Plaintiff agreed. Defendant gave his P20.00 to plaintiff and told plaintiff to go ahead and ignite the firecracker with his lighted cigarette, but plaintiff said that he had better explode the firecracker outside the laboratory because there were people inside. Plaintiff and defendant stepped out, followed only by Ramon Pilado. Once, outside, plaintiff made a gesture of igniting the firecracker, but defendant stopped him, asking how he could be sure that the plaintiff would not throw the firecracker at him after lighting the same. Thereupon, plaintiff suggested that the firecracker be tied to his hand, which suggestion defendant followed, by tying the firecracker to the right palm of plaintiff who extended his hand for the purpose. Plaintiff, then, simulated igniting the fuse with his cigarette and suddently thrust his hand to defendant, at the same time shouting, “Boom!” Defendant brushed aside plaintiff’s hand and ran away, apparently scared. Plaintiff laughed at defendant, calling him a coward. When the defendant realized that plaintiff was merely joking, he dared plaintiff to ignite the fuse. Plaintiff held the firecraker tightly, ignited the fuse which was about six inches long and extended his

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arm. When the firecracker exploded, plaintiff exclaimed at defendant, “You lost,” and immediately headed for the laboratory. It was Ramon Pillado who called plaintiff’s attention that his right hand was bleeding. Plaintiff looked at his hand and said: “Well, it is an accident; it is my fault.” He asked to be taken to the Provincial Hospital where he was confined for 14 days. He paid P172.00 for the hospital room x x x; P53.35 for medicine x x x; and P200.00 for subsistence and transportation expenses of his family in accompanying and attending him in the hospital. Plaintiff’s monthly salary was P150.00, which he failed to receive since the date of the incident, December 23, 1956, because after he left the hospital, his employer, the Planters’ Association, did not take him back. However, beginning December, 1956, the Association employed his son. Upon his discharge from the hospital, plaintiff asked for monetary help from defendant, and both agreed that defendant pay plaintiff P1,000.00; P500.00 of which was deposited on January 21, 1957 x x x In February, 1957, plaintiff demanded payment of the balance of P500.00 but defendant simply told plaintiff that he was already paid. x x x [Plaintiff thereafter filed an action for damages before the trial court but the latter dismissed the case. On appeal, the Court of Appeals sustained the dismissal.] The facts being as above related, satisfactorily established by the evidence, this appeal cannot be maintained with success. As is seen, “the plaintiff played the part of a bravado,” to use the language of the trial court. At first, he expressed the belief that the firecracker was a fake one and would not explode, but when assured by the owner, Vicente Lim, and also by the defendant, that it was a real one and would explode, he boasted that if he held it tightly he would not get hurt even if it exploded. Those who heard him laughed mockingly. Evidently irked thereby, he challenged everyone to a bet of P100.00. No one dared accept his bet except the defendant, but the latter would bet only P20.00. Even so, plaintiff accepted defendant’s bet of P20.00. It was said that when plaintiff noticed that the fuse of the firecracker was ignited, he called-off the bet, but the defendant refused. This theory of plaintiff was properly rejected by the trial court because “if the plaintiff,” said it, “did not like to take the risk after the fuse was ignited, he could have easily pulled out the fuse with his left hand or he could have smothered it by smashing it on the ground.” This case should, therefore, be governed by the doctrine of “volenti non fit injuria” (no wrong is done to him who consents), that is, “that to which a person assents is not esteemed, in law, an injury,” the facts and circ*mstances being such as to warrant the conclusion that the plaintiff, freely and voluntarily, with full knowledge of the nature and extent of the risk he ran,

DEFENSES IN NEGLIGENCE CASES

impliedly agreed to incur it. When a person, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application. (See Birmingham Railway & Electric Co. vs. Allen, 20 L.R.A. 457, and the cases cited therein; also Tamayo vs. Gsell, 35 Phil. 954). In Francisco, Torts and Damages, 1957 ed., pp. 197-198, we read the following on the matter of “assumption of risk”: “The principle that one who voluntarily assumed the risk of injury from a known danger is debarred from a recovery is recognized in negligence cases. As stated, a plaintiff who by his conduct, has brought himself within the operation of the maxim, ‘volenti non fit injuria,’ cannot recover on the basis of the defendant’s negligence. In the words of the maxim as translated, ‘that to which a person assents is not esteemed in law was injury.’ * * * It is said that one who knows, appreciates, and deliberately exposes himself to a danger ‘assumes the risk’ thereof. One cannot deliberately incur an obvious risk of personal injury, especially when preventive measures are at hand, and then hold the author of the danger for the ensuing injury.” MURPHY vs. STEEPLECHASE AMUsem*nT CO. 166 N.E. 173 [1929] CARDOZO, C.J. The defendant, Steeplechase Amusem*nt Company, maintains an amusem*nt park at Coney Island, New York. One of the supposed attractions is known as “The Flopper.” It is a moving belt, running upward on an inclined plane, on which passenger sit or stand. Many of them are unable to keep their feet because of the movement of the belt, and are thrown backward or aside. The belt runs in a groove, with padded walls on either side to a height of four feet, and with padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by current furnished by the Brooklyn Edison Company, supplies the needed power. Plaintiff, a vigorous young man, visited the park with friends. One of them, a young woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her. As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in front and also friends behind him were thrown at the same time. Something more was here, as everyone understood, than the slowly-moving escalator that is common in shops and public places. A fall was foreseen as one of the risks of the adventure. There would have been no point to the whole thing, adventure about it, if the risk had not been there. The very name above the gate, the Flopper, was warning to the timid. If the name was not enough, there was warning more distinct in the experience of others. We are told by the plaintiff’s wife that the members of her party stood looking at the sport before joining in it themselves. Some aboard the belt were able, as she viewed them, to sit down with decorum or even stand and keep their footing; others jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and fun. “I took a chance,” she said when asked whether she thought that a

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fall might be expected. Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture of a knee cap. He states in his complaint that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent the injuries to persons who were using it without knowledge of its dangers, and in a bill of particulars he adds that it was operated at a fast and dangerous rate of speed and was not supplied with a proper railing, guard or other device to prevent a fall therefrom. No other negligence is charged. We see no adequate basis for a finding that the belt was out of order. It was already in motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such circ*mstances by the addition of the facile comment that it threw him in a jerk. One who steps upon a moving belt and finds his heels above his head is in no position to discriminate with nicety between the successive stages of the shock, between the jerk which is a cause and the jerk, accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power was transmitted smoothly, and could not be transmitted otherwise. If the movement was spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict, should rest on something firmer than a mere descriptive ephithet, a summary of the sensations of a tense and crowded moment. Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This was the very hazard that was invited and foreseen. Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the chance of contact with the ball. The antics of the clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of the crowd, evokes its own guffaws, but they are not the pleasures of tranquillity. The plaintiff was not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of onlookers when he made his choice to join them. He took the chance of a like fate, with whatever damage to his body might ensue from such fall. The timorous may stay at home. A different case would be here if the dangers inherent in the sport were obscure or unobserved, or so serious as to justify the belief that precautions of some kind must must have been taken to avert them. Nothing happened to the plaintiff except what common experience tells us may happen at any time as a consequence of a sudden fall. Many a skater or a horseman can rehearse a tale of equal woe. A different case there would also be if the accidents have been so many as to show that the game in its inherent nature too dangerous to be continued without change. The president of the amusem*nt company says that there had never been such an accident before. A nurse employed at the emergency hospital maintained in connection with the park contradicts him to some extent. She says that on other occasions she had attended patrons of the park who had been injured at the Flopper, how many she could not say.

DEFENSES IN NEGLIGENCE CASES

None, however, had been badly injured or had suffered broken bones. Such testimony is not enough to show that the game was a trap for the unwary, too perilous to be endured. According to the defendant’s estimate, two hundred and fifty thousand visitors were at the Flopper in a year. Some quota of accidents was to be looked for in so great a mass. One might well say that a skating rink should be abandoned because skaters sometimes fall.

(2) Contractual Relations.

There may be implied assumption of risk if the plaintiff entered into a relation with the defendant. By entering into a relationship freely and voluntarily where the negligence of the defendant is obvious, the plaintiff may be found to accept and consent to it, and to undertake to look out for himself and to relieve the defendant of the duty. (Prosser and Keeton, p. 485). Thus, there may be assumption of risk if the plaintiff entered into a contractual relation with the defendant. Assumption of risk is a defense of an employer in a tort case filed by his employee. The nature and extent of the doctrine as applied to cases where there is employer-employee relationship between the parties was explained in Cerezo vs. Atlantic Gulf and Pacific Co. (supra, at 26): “In England, it was said in the case of Thomas vs. Quartermaine (18 Q.d. 685) that the Act (Employer’s Liability Act) had not varied the effect of the maxim volenti non-fit injuria so far as it involves the ordinary risks inherent in his particular employment. To the same effect is O’Maley vs. South Boston Gas Light Co. (158 Mas. 135); Birmingham Ry. & Electric Co. vs. Allen (99 Ala. 359); Whitcomb vs. Standard Oil Co., (153 Ind. 513). But while the Act made no change in the doctrine of assumption of risk in favor of the workmen since the enactment of these Acts. The doctrine is based on the implied consent of the servant to accept or continue in the employment after becoming aware of the risk which resulted in his injury. It was formerly held that mere acceptance of the employment or continuance in it with knowledge of the risk was conclusive of the workmen’s consent to accept the risk, and the usual practice was, when evidence of this nature was satisfactory, to direct a verdict or nonsuit in favor of the defendant. The trend of modern public sentiment in favor of compensation for industrial accidents, however, has had the influence of making the assumption of risk almost entirely of fact, instead of, as under the former practice, practically inferring his consent from the fact of his knowledge of the risk, however unwilling he may be, in fact, to do so. This new theory of the assumption of risk, however, does not abrogate the doctrine at all. It merely

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requires more convincing evidence of the employee’s consent to assume the risk. It is still true that the employee assumes the ordinary risks inherent in the industry in which he is employed. But as to those abnormal risks arising from unusual conditions, the new view of the doctrine requires the question of fact and to require cogent and convincing evidence of such consent.…”

Consistent with the above-discussed rules, the Supreme Court ruled in Rakes vs. Atlantic Gulf and Pacific Company (supra at 34), that an employee cannot be said to have assumed a risk which is not incident to his employment. The risk is not incident to the employment of the plaintiff if the occurrence was due to the failure of the employer to repair a portion of the workplace. Thus, if a worker of the railroad company was injured because the track sagged, the railroad company cannot claim that the employee assumed the risk because the injury resulted by reason of the company’s failure to repair the tract or to duly inspect it. The employee may not be deemed to have stipulated that the employer might neglect his legal duty. Afialda vs. Hisole (85 Phil. 67 [1949]) is an example of a case where there was assumption of risk. The plaintiff’s deceased brother, upon whom she depended for support, was hired by the defendants as caretaker of their carabaos at a fixed compensation. While tending the animals, the caretaker was gored by one of them and he died as a consequence. There was assumption of risk in the case because it was the caretaker’s business to try to prevent the animals from causing injury or damage to anyone, including himself. And being injured by the animal under those circ*mstances, was one of the risks of the occupation which he had voluntarily assumed and for which he must take the consequences. The Supreme Court relied on the decision of the Spanish Supreme Court (cited in Manresa, Commentaries Vol. 12, p. 578) where it was held that the death of an employee who was bitten by a feline which his master had asked him to take to his establishment was declared to be a veritable accident of labor. In the contract of common carriage, there is assumption of the ordinary risk involved in transportation of goods and passengers. As a rule, when a passenger boards a common carrier, he takes the risks incidental to the mode of travel he has taken. After all, a carrier is not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely without injury. (Yobido vs. Court of Appeals, 281 SCRA 1, 8 [1997]).

(3) Dangerous Activities.

Persons who voluntarily participate in dangerous activities

DEFENSES IN NEGLIGENCE CASES

assume the risks which are usually present in such activities. The rule may apply to professional athletes who are deemed to assume the risks of injury incident to their trade. For example, a basketball player is deemed to have assumed the risk of suffering from injuries incident to such contact sport. Sprained ankle or dislocations of the bone are common occurrences in basketball. A baseball player may also be subject to the defense of assumption of risk if he sustained severe damage to his knee when he slipped in the wet and muddy outfield while chasing a fly ball. If he knew about the general condition of the field, his continued participation in the game constituted assumption of risk. Awareness of the risk is not to be determined in a vacuum but must be assessed against the background of the skill and experience of the particular plaintiff, and in that assessment, a higher degree of awareness will be imputed to a professional than to one with less than professional experience in the particular sport. (Maddox vs. City of New York, 487 N.E. 2d 553 [1985]).

(4) Defendant’s negligence.

Another situation where there is implied admission is when the plaintiff is aware of the risk created by the defendant’s negligence, yet he voluntarily decided to proceed to encounter it. (Prosser and Keeton, p. 481). For example, if the plaintiff has been supplied with a product which he knows to be unsafe, he is deemed to have assumed the risk of using such unsafe product. This type of assumption of risk is what is contemplated as a defense under Article 97 of the Consumer Act. (see Chapter 12). 5.

EFFECT OF DEATH

Death of the defendant will not extinguish the obligation based on quasi-delict. In fact, an action survives even if the defendant dies during the pendency of the case if the said case is an action to recover for an injury to persons or property by reason of tort committed by the deceased. (Board of Liquidators vs. Heirs of Kalaw, L-18805, Aug. 14, 1967; Aguas, et al. vs. Llemos, et al., L-18107, Aug. 30, 1962). The case will continue through the legal representative who will substitute the deceased. (Section 16, Rule 3, 1997 Rules of Civil Procedure). 6. PRESCRIPTION A. WHEN PERIOD COMMENCES.

The prescriptive period for quasi-delict is four (4) years counted

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from the date of the accident. (Article 1146, Civil Code; Diocesa Paulan, et al. vs. Zacarias Sarabia, et al., 104 Phil. 1050 [1958]; Jamelo vs. Serfino, 44 SCRA 464 [1972]; Ferrer vs. Ericta, 84 SCRA 705 [1978]; Kramer, Jr. vs. Court of Appeals, 178 SCRA 518 [1989]). The Supreme Court explained in Kramer, Jr. (ibid.) that the right of action accrues when there exists a cause of action, which consists of three (3) elements, namely: a) a right in favor of the plaintiff by whatever means and under whatever law it arises or is created; b) an obligation on the part of the defendant to respect such right; and c) an act or omission on the part of such defendant violative of the right of the plaintiff. The prescriptive period must be counted when the last element of commission of an act or omission violative of the right of the plaintiff, which is the time when the cause of action arises. B.

DOCTRINE OF RELATIONS OR RELATIONS BACK DOCTRINE.

In Allied Banking Corporation vs. Court of Appeals (178 SCRA 526 [1989]), the Supreme Court ruled that the defendant cannot properly invoke the Relations Back Doctrine in the computation of the prescriptive period. The private respondent in the said case obtained a loan from Genbank as evidence by a promissory note. On March 25, 1977, the Monetary Board of the Central Bank issued a resolution forbidding Genbank from doing business. Another resolution was issued on March 29, 1977 ordering the liquidation of the bank. Later, Allied Bank acquired all the assets and liabilities of Genbank. Allied bank filed a complaint against the private respondent on February 7, 1979 when the said private respondent failed to comply with his obligation. On June 17, 1987, the private respondent filed a motion to admit Amended/Supplemental Complaint and Third Party Complaint. The third party complaint was directed against the Monetary Board; the private respondent alleged therein that he was prevented from performing his obligation by reason of the tortious interference by the Central Bank’s Monetary Board. The third party complaint was not admitted on the ground, among others, of prescription under Article 1146 of the Civil Code. The private respondent countered that the claim against the Central Bank has not prescribed. Relying on the doctrine of relations, the private respondent argued that the third party complaint should be deemed to have been filed when the original complaint was filed. The Supreme Court explained the doctrine in one of the footnotes of the case:

DEFENSES IN NEGLIGENCE CASES

“That principle of law by which an act done at one time is considered by fiction of law to have been done at some antecedent period. It is a doctrine which, although of equitable origin, has a well recognized application to proceedings at law; a legal fiction invented to promote the ends of justice or prevent injustice and occurrence of injuries where otherwise there would be no remedy. The doctrine, when invoked, must have connection with actual fact, must be based on some antecedent lawful rights. It has also been referred to as ‘the doctrine of relation back.’”

Unfortunately for the private respondent, the Supreme Court did not sustain his argument and ruled instead that under Article 1146 of the Civil Code, the cause of action accrued on March 25, 1977. It should be noted, however, that the Supreme Court did not totally reject the doctrine of relations. The Supreme Court did not rule that the doctrine is inapplicable in this jurisdiction. It is believed that the same may be applied under certain exceptional circ*mstances. For example, the doctrine should be applied where the injury was discovered long after the accident. The offended party should not be prejudiced in such case and the prescriptive period should commence to run only upon discovery of the injury. It is not unusual that the effect of the negligent act is latent and may become apparent only after quite some time. Thus, if the injury becomes apparent only after several years, the prescriptive period should commence to run only after discovery. For example, a doctor negligently transfused blood to a patient that was contaminated with HIV. If the effect became apparent only after five (5) years, the four (4) year prescriptive period should commence only when it was discovered after five (5) years and not when the negligent act was committed. At the very least, the filing of an action after the expiration of the prescriptive period should, by fiction of law, be considered as having been filed within said period. 7. INVOLUNTARINESS There is no specific provision dealing with the effect of involuntariness in quasi delictual actions. In the law on contracts, force and intimidation result in vitiated consent and the resulting contract is considered voidable. On the other hand, under the Revised Penal Code, the person acting because of the force or intimidation employed upon him is subsidiarily liable to the offended party. In such a case, however, the liability is not based on negligence but may be classified as strict liability.

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It is believed that involutariness is a complete defense in quasidelict cases and the defendant is therefore not liable if force was exerted on him. This may happen, for instance, when the defendant was forced to drive his vehicle by armed men. He was, at pain of death, forced to drive at a very fast clip because the armed men were escaping from policemen. It is believed that the defendant cannot be held liable, if a bystander is hit as a consequence. The case of Laidlaw v. Sage (158 N.Y. 73, 52 N.E. 679 [1899]) decided by the Court of Appeals of New York is pertinent. In the said case, a stranger caused the explosion of a dynamite in the office of the defendant after the latter failed to comply with the stranger’s demand to deliver $1,200,000.00. The plaintiff, who was present at the time of the explosion, was allegedly pushed to one side by the defendant and was severely injured as a consequence. The plaintiff sued the defendant for damages but the Court denied the plaintiff’s claim ruling that: “That at the time of the occurrence which was the subject of this action, the defendant suddenly and unexpectedly found himself confronted by a terrible and impending danger which, which would naturally, if not necessarily, terrify and appall the most intrepid, is shown by the undisputed evidence. If, with this awful peril before him, he maintained any great degree of self-control, it indicated a strength of nerve and personal bravery quite rare, indeed. That the duties and responsibilities of a person confronted with such danger are different and unlike those which follow his actions in performing the ordinary duties of life under other conditions is well-established principle of law. The rule applicable to such a condition is stated in Moak’s Underhill on Torts (page 14), as follows: ‘The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.” It is there said that this rule seems to be founded upon the maxim that self-preservation is the first law of nature; and that, where it is a question whether one of two men shall suffer, each is justified in doing the best he can for himself.”

DEFENSES IN NEGLIGENCE CASES

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CHAPTER 5

CAUSATION 1. DEFINITION OF PROXIMATE CAUSE The most widely quoted, and what is said to be the best definition of proximate cause, is that it is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. (57 Am. Jur. 2d 482; 65 CJS 1128; Black’s Law Dictionary 1979 Ed., p. 1103). A formulation of the same definition had been adopted in this jurisdiction in Bataclan vs. Medina (102 Phil. 181 [1957] cited in Fernando vs. Court of Appeals, 208 SCRA 714; Urbano vs. Intermediate Appellate Court, 157 SCRA 1; PBC v. Court of Appeals, 269 SCRA 695; Reynera v. Hiceta, 306 SCRA 102, 108 [1999]). Other definitions of proximate cause inject the element of foreseeability. Thus, in the same case, Bataclan vs. Medina, the Supreme Court cited this more comprehensive definition of proximate cause: “The proximate legal cause is that acting first and producing the injury, either immediately or by settling other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately affecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment his act or default that an injury to some person might probably result therefrom.”

Another definition which includes the element of foreseeability is found in Pilipinas Bank vs. Court of Appeals (234 SCRA 435 [1994] citing People vs. Desalina, 57 O.G. 8694) which goes this way: “x x x The concept of proximate cause is well defined in our corpus of jurisprudence as ‘any cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not 250

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have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence.”

It is believed that definitions which include the element of foreseeability are misleading and are inconsistent with the provisions of the New Civil Code. As will be discussed hereunder, the actor is liable for the damages which resulted from his acts, whether the same is foreseen or unforeseen. It is likewise important to state that even the best definition of proximate cause cannot be considered satisfactory because the terms used in the definition will themselves require definition. (57 Am. Jur. 2s 482). There are even opinions to the effect that proximate cause can only be determined by common sense and logic. 2.

DISTINGUISHED FROM OTHER TERMS

A.

REMOTE CAUSE.

The proximate cause is distinguished from remote cause which is defined as that cause which some independent force merely took advantage of to accomplish something not the natural effect thereof. (57 Am. Jur. 2d 484). CASE: CONSOLACION GABETO vs. AGATON ARANETA 42 Phil. 252 [1921] This action was instituted in the Court of First Instance of Iloilo by Consolacion Gabeto, in her own right as widow of Proceso Gayetano, and as guardian ad litem of the three children, Conchita Gayetano, Rosita Gayetano, and Fermin Gayetano, for the purpose of recovering damages incurred by the plaintiff as a result of the death of the said Proceso Gayetano, supposedly caused by the wrongful act of the defendant Agaton Araneta. Upon hearing the evidence, his Honor, Judge L.M. Southworth, awarded damages to the plaintiff in the amount of P3,000, from which judgment the defendant appealed. It appears in evidence that on August 4, 1918, Basilio Ilano and Proceso Gayetano took a carromata near Plaza Gay, in the City of Iloilo, with a view to going to a co*ckpit on Calle Ledesma in the same City. When the driver of the carromata had turned his horse and started in the direction indicated, the defendant, Agaton Araneta, stepped out into the street, and laying his hands

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on the reins, stopped the horse, at the same time protesting to the driver that he himself had called this carromata first. The driver, one Julio Pagnaya, replied to the effect that he had not heard or seen the call of Araneta, and that he had taken up the two passengers then in the carromata as the first who had offered employment. At or about the same time Pagnaya pulled on the reins of the bridle to free the horse from the control of Agaton Araneta, in order that the vehicle might pass on. Owing, however, to the looseness of the bridle on the horse’s head or to the rottenness of the material of which it was made, the bit came out of the horse’s mouth; and it became necessary for the driver to get out, which he did, in order to fix the bridle. The horse was then pulled over to near the curb, by one or the other — it makes no difference which — and Pagnaya tried to fix the bridle. While he was thus engaged, the horse, being free from the control of the bit, became disturbed and moved forward, in doing which he pulled one of the wheels of the carromata up on the sidewalk and pushed Julio Pagnaya over. After going a few yards further the side of the carromata struck a police telephone box which was fixed to a post on the sidewalk, upon which the box came down with a crash and frightened the horse to such an extent that he set out at full speed up the street. Meanwhile one of the passengers, to wit, Basilio Ilano, had alighted while the carromata was as yet alongside the sidewalk; but the other, Proceso Gayetano, had unfortunately retained his seat, and after the runaway horse had proceeded up the street to a point in front of the Mission Hospital, the said Gayetano jumped or fell from the rig, and in so doing received injuries from which he soon died. As to the facts above stated the evidence cannot be said to be materially in conflict; but there is decided conflict upon the point of the exact relation of the defendant Agaton Araneta, to the runaway. The evidence for the plaintiff on this point consists chiefly of the testimony of Julio Pagnaya and of Basilio Ilano. They both say that while yet in the middle of the street, the defendant jerked the bridle, which caused the bit to come out of the horse’s mouth, and Julio says that at that juncture the throat latch of the bridle was broken. Be this as it may, we are of the opinion that the mere fact that the defendant interfered with the carromata by stopping the horse in the manner stated would not make him liable for the death of Proceso Gayetano; because it is admitted by Julio Pagnaya that he afterwards got out of the carromata and went to the horse’s head to fix the bridle. The evidence is furthermore convincing to the effect that, after Julio Pagnaya alighted, the horse was conducted to the curb and that an appreciable interval of time elapsed — same witnesses say several minutes — before the horse started on his career up the street. It is therefore evident that the stopping of the rig by Agaton Araneta in the middle of the street was too remote from the accident that presently ensued to be considered the legal or proximate cause thereof. Moreover, by getting out and taking his post at the head of the horse, the driver was the person primarily responsible for the control of the animal, and the defendant cannot be charged with liability for the accident resulting from the action of

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the horse thereafter. Julio Pagnaya testifies to one fact which, if it were fully accredited, would possibly put a different complexion on the case; for he says that when the horse was pulled over to the curb, the defendant, by way of emphasizing his verbal denunciation of Pagnaya, gesticulated with one of his arms and incidentally brought his hand down on the horse’s nose. This, according to Pagnaya, is what made the horse run away. There is no other witness who testifies to this: and it is noteworthy that Basilio Ilano does not mention it. A decided preponderance of the evidence in our opinion is against it. The evidence indicates that the bridle was old, and the leather of which it was made was probably so weak as to be easily broken. Julio Pagnaya had a natural interest in refuting this fact, as well as in exculpating himself in other respects; and we are of the opinion that the several witnesses who testified for the defendant gave a more credible account of the affair than the witnesses for the plaintiff. According to the witnesses for the defendant, it was Julio who jerked the rein, thereby causing the bit to come out of the horse’s mouth; and they say that Julio, after alighting, led the horse over to the curb, and proceeded to fix the bridle; and that in so doing the bridle was slipped entirely off, when the horse, feeling himself free from control, started to go away as previously stated. Upon the whole we are constrained to hold that the defendant is not legally responsible for the death of Proceso Gayetano; and though reluctant to interfere with the findings of fact of a trial court when there is a conflict of testimony, the evidence in this case so clearly preponderates in favor of the defendant, that we have no recourse but to reverse the judgment. The judgment will therefore be reversed, and the defendant will be absolved from the complaint; and it is so ordered, without express finding as to costs of either instance. So ordered.

B.

NEAREST CAUSE.

The word “proximate” is defined as “being in immediate relation with something else; next” and “near.” (Webster’s Dictionary, 1992 Ed.). Hence, the impression that is being given by the word is that it is the nearest cause. Contrary to the impression being given by the term, however, proximate cause is not necessarily the nearest cause. Proximate cause is not necessarily the last link in the chain of events but that which is the procuring efficient and predominant cause. (Pennsylvania Fire Ins. Co. vs. Sikes, 166 ALR 375, 197 Okla. 137, 168 P2d 1016). As the Supreme Court said in one case, the requirement is that the act was the proximate cause, “not implying, however, as might be inferred from the word itself, the nearest in point of time or relation, but rather the efficient cause, which may be the most remote of an operative chain. It must be that which sets the others

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in motion and is to be distinguished from a mere preexisting condition upon which the effective cause operates, and must have been adequate to produce the resultant damage without the intervention of an independent cause.’’ (The Atlantic Gulf and Pacific Company vs. The Government of the Phil. Islands, G.R. No. L-4195, February 18, 1908, citing Insurance Co. vs. Boon, 95 U.S. 117, 130 and 133; Scheffer vs. Railroad Co., 105, U.S. 249; St. Louis I. M. & S. R. Co. vs. Commercial Ins. Co., 139 U.S. 223, 237; Washington and G. Railway Co. vs. Hickey, 166 U.S. 521; the G.R. Booth, 171 U.S. 450) This rule is illustrated in Rodrigueza vs. Manila Railroad Company. (supra at 173, citing 38 Am. Dec. , 64, 77; Kansas City, etc. Railroad Co. vs. Blaker, 64 L.R.A. 81; Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373). In the said case, embers were negligently emitted from one of the trains of the defendant resulting in a fire in one of the houses near the tracks (house 1). Because of the wind, fire was communicated to another house (house 2) and then to another (house 3). One of the arguments of the railroad company in trying to escape liability to the owners of “houses 2 and 3 ” is that the fire did not directly come from its train but from “house 1.” The Supreme Court rejected the argument ruling that what was important was the admitted fact that the fire originated in the negligent acts of the defendant and the circ*mstance that fire may have been communicated to the two other house through the first house instead of having been directly communicated from the locomotive through the action of the wind, is immaterial. C.

CONCURRENT CAUSES.

The proximate cause is not necessarily the sole cause of the accident. The defendant is still liable in case there is concurrent causes brought about by acts or omissions of third persons. The actor is not protected from liability even if the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm so long as the actor’s negligent conduct actively and continuously operate to bring about harm to another. (Africa vs. Caltex, supra at 157). In the same vein, the primary cause remains the proximate cause even if there is an intervening cause which merely cooperated with the primary cause and which did not break the chain of causation. (ibid.). It is also the effect of the rule on concurrent causes that the doctrine of the last clear chance hereinbelow discussed, cannot be

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extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter’s peril, and it cannot be invoked as between defendants concurrently negligent. (Bustamante vs. Court of Appeals, 193 SCRA 603 [1991]). In cases where there is concurrent causes or negligence, the joint tortfeasors are solidarily liable. (Article 2194, NCC). In Francisco Vinluan vs. The Court of Appeals, et al. (G.R. Nos. L-21477-81. April 29, 1966), the Supreme Court ruled that the drivers as well as the owners of the vehicles — including the owner of the common carrier where the plaintiff was riding — are solidarily liable to a passenger who was injured due to the negligence of the said drivers. However, there is persuasive authority for the rule that the liability of the employer should not be joint and several with their drivers. The rules were summarized by the Supreme Court in Far Eastern Shipping Company vs. Court of Appeals (297 SCRA, pp. 83-84 [1998], citing 65 C.J.S, Negligence, Section 110, pp. 1184-1189; Sanco, Philippine Law on Torts and Damages, 1984 Ed., 259-260; Dimayuga vs. Phil. Commercial & Industrial Bank, et al., 200 SCRA 143 [1991]; Ouano Arrastre Service, Inc. vs. Aleonar, et al., 202 SCRA 619 [1991]; Singapore Airlines Limited vs. Court of Appeals, et al., 243 SCRA 143 [1995]; Inciong, Jr. vs. Court of Appeals, 257 SCRA 578 [1996]): “It may be said, as a general rule, that negligence in order to render a person liable need not be the sole cause of an injury. It is sufficient that his negligence, concurring with one or more efficient causes other than plaintiff’s, is the proximate cause of the injury. Accordingly, where several causes combine to produce injuries, a person is not relieved from liability because he is responsible for only one of them, it being sufficient that the negligence of the person charged with injury is an efficient cause without which the injury would not have resulted to as great an extent, and that such cause is not attributable to the person injured. It is no defense to one of the concurrent tortfeasors that the injury would not have resulted from his negligence alone, without the negligence or wrongful acts of the other concurrent tortfeasor. Where several causes producing an injury are concurrent and each is an efficient cause without which the injury would not have happened, the injury may be attributed to all or any of the causes and recovery may be had against any or all of the responsible persons although under the circ*mstances of the case, it may appear that one of them to the injured person was not the same. No actor’s negligence ceases to be the proximate cause merely because it does not exceed the negligence of other actors. Each wrongdoer is responsible for the entire result and

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is liable as though his acts were the sole cause of the injury. There is no contribution between joint tortfeasors whose liability is solidary since both of them are liable for the total damage. Where the concurrent or successive negligent acts or omissions of two or more persons, although acting independently, are in combination the direct and proximate cause of a single injury to a third person, it is impossible to determine what proportion each contributed to the injury and either of them is responsible for the whole injury. Where their concurring negligence resulted in injury or damage to a third party, they become joint tortfeasors and are solidarily liable for the resulting damage under Article 2194 of the Civil Code.”

It was ruled, however, that the plaintiff cannot recover if the negligence of both the plaintiff and the defendant can be considered the concurrent proximate causes of the injury. (Bernardo vs. Legaspi, 29 Phil. 12 [1914]; Syjuco, Inc. vs. Manila Railroad Company, CAG.R. No. 22631-R, December 17, 1959, 56 O.G. 4410). CASES: PROSPERO SABIDO vs. CARLOS CUSTODIO 124 Phil. 516 [1966] CONCEPCION, C.J.: Prospero Sabido and Aser Lagunda seek the review by certiorari of a decision of the Court of Appeals, affirming that of the Court of First Instance of Laguna, sentencing the Laguna-Tayabas Bus Co., Nicasio Mudales, and herein petitioners, Prospero Sabido and Aser Lagunda, to jointly and severally indemnify Belen Makabuhay Custodio and her son, Agripino Custodio, Jr., in the sum of P6,000 and to pay the costs of the suit. The facts are set forth in the decision of the Court of Appeals from which we quote: “Upon a careful study and judicious examining of the evidence on record, we are inclined to concur in the findings made by the trial court. Here is how the Court a quo analyzed the facts of this case: ‘In Barrio Halang, Municipality of Lumban, Province of Laguna, two trucks, one driven by Nicasio Mudales and belonging to Laguna Tayabas Bus Company, and the other driven by Aser Lagunda and owned by Prospero Sabido, going in opposite directions met each other in a road curve. Agripino Custodio, a passenger of LTB bus, who was hanging on the left side as truck was full of passengers was sideswiped by the truck driven by Aser Lagunda. As a result, Agripino Custodio was injured and died. (Exhibit A).

‘It appears clear from the evidence that Agripino Custodio was hanging

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in the left side of the LTB Bus. Otherwise, were he sitting inside the truck, he could not have been struck by the six by six truck driven by Aser Lagunda. This fact alone, of allowing Agripino Custodio to hang on the side of the truck, makes the defendant Laguna Tayabas Bus Company liable for damages. For certainly its employees, who are the driver and conductor were negligent. They should not have allowed Agripino Custodio to ride their truck in that manner. ‘To avoid any liability, Aser Lagunda and Prospero Sabido throw all the blame on Nicasio Mudales. From the testimony, however, of Belen Makabuhay, Agripino Custodio’s widow, we can deduce that Aser Lagunda was equally negligent as Nicasio Mudales. Belen testified that the 6 x 6 truck was running fast when it met the LTB Bus. And Aser Lagunda had time and opportunity to avoid the mishap if he had been sufficiently careful and cautious because the two trucks never collided with each other. By simply swerving to the right side of the road, the 6 x 6 truck could have avoided hitting Agripino Custodio. It is incredible that the LTB was running on the middle of the road when passing a curve. He knows it is dangerous to do so. We are rather of the belief that both trucks did not keep close to the right side of the road so they sideswiped each other and thus Agripino Custodio was injured and died. In other words, both drivers must have driven their trucks not in the proper line and are, therefore, both reckless and negligent’. “We might state by way of additional observations that the sideswiping of the deceased and his two fellow passengers took place on broad daylight at about 9:30 in the morning of June 9, 1955 when the LTB bus with full load of passengers was negotiating a sharp curve of a bumpy and sliding downward a slope, whereas the six by six truck was climbing up with no cargoes or passengers on board but for three helpers, owner Sabido and driver Lagunda. (tsn. 308-309, Mendoza). Under the above-stated condition, there exists strong persuasion to accept what Belen Makabuhay and Sofia Mesina, LTB passengers, had testified to the effect that the 6 x 6 cargo truck was running at a fast rate of speed. (tsn. 15, 74, 175 Mendoza). From the lips of no less than driver Lagunda himself come the testimonial admission that the presence of three hanging passengers located at the left side of the bus was noted when his vehicle was still at a distance of 5 or 7 meters from the bus, and yet despite the existence of a shallow canal on the right side of the road which he could pass with ease, Lagunda did not care to exercise prudence to avert the accident simply because to use his own language the canal ‘is not a passage of trucks.’” Based upon these facts, the Court of First Instance of Laguna and the Court of Appeals concluded that the Laguna Tayabas Bus Co. — hereinafter referred to as the carrier — and its driver Nicasio Mudales (none of whom has appealed), had violated the contract of carriage with Agripino Custodio, whereas petitioners Sabido and Lagunda were guilty of a quasi delict, by reason of which all of them were held solidarily liable in the manner above indicated.

Petitioners now maintain: (1) that the death of Agripino Custodio was

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due exclusively to the negligence of the carrier and its driver; (2) that petitioners were not guilty of negligence in connection with the matter under consideration; (3) that petitioners cannot be held solidarily liable with the carrier and its driver; and (4) that the complaint against petitioners herein should be dismissed. With respect to the first two (2) points, which are interrelated, it is urged that the carrier and its driver were clearly guilty of negligence for having allowed Agripino Custodio to ride on the running board of the bus, in violation of Section 42 of Act No. 3992, and that this negligence was the proximate cause of Agripino’s death. It should be noted, however, that the lower court had, likewise, found the petitioners guilty of contributory negligence, which was as much a proximate cause of the accident as the carrier’s negligence, for petitioners’ truck was running at a considerable speed, despite the fact that it was negotiating a sharp curve, and, instead of being close to its right side of the road, said truck was driven on its middle portion and so near the passenger bus coming from the opposite direction as to sideswipe a passenger riding on its running board. The views of the Court of Appeals on the speed of the truck and its location at the time of the accident are in the nature of findings of fact, which we cannot disturb in a petition for review by certiorari, such as the one at bar. At any rate, the correctness of said finding is borne out by the very testimony of petitioner Lagunda to the effect that he saw the passengers riding on the running board of the bus while the same was still five (5) or seven (7) meters away from the truck driven by him. Indeed, the distance between the two (2) vehicles was such that he could have avoided sideswiping said passengers if his truck were not running at a great speed. Although the negligence of the carrier and its driver is independent, to its execution, of the negligence of the truck driver and its owner, both acts of negligence are the proximate cause of the death of Agripino Custodio. In fact, the negligence of the first two (2) would not have produced this result without the negligence of petitioners’ herein. What is more, petitioners’ negligence was the last, in point of time, for Custodio was on the running board of the carrier’s bus sometime before petitioners’ truck came from the opposite direction, so that, in this sense, petitioners’ truck had the last clear chance. Petitioners contend that they should not be held solidarily liable with the carrier and its driver, because the latter’s liability arises from a breach of contract, whereas that of the former springs from a quasi-delict. The rule is, however, that “According to the great weight of authority, where the concurrent or successive negligent acts or omission of two or more persons, although acting independently of each other, are, in combination, the direct and proximate cause of a single injury to a third person and it is impossible to determine in what proportion each contributed to the injury, either is responsible for the whole injury, even though his act alone might not have caused the entire injury, or the same damage might have resulted from the

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acts of the other tortfeasor. . . .” (38 Am. Jur. 946, 947). FRANCISCO VINLUAN vs. THE COURT OF APPEALS G.R. Nos. L-21477-81, April 29, 1966 REGALA, J.: Seven persons were killed and thirteen others were injured in Bangar, La Union, on February 16, 1958, when a passenger bus on which they were riding caught fire after hitting a post and crashing against a tree. The bus, owned by petitioner and driven by Hermenegildo Aquino, came from San Fernando, La Union and was on its way to Candon, Ilocos Sur. It appears that, as the bus neared the gate of the Gabaldon school building in the municipality of Bangar, another passenger bus owned by Patricio Hufana and driven by Gregorio Hufana tried to overtake it but that instead of giving way, Aquino increased the speed of his bus and raced with the overtaking bus. Aquino lost control of his bus as a result of which it hit a post, crashed against a tree and then burst into flames. Among those who perished were Timoteo Mapanao, Francisca Lacsamana, Narcisa Mendoza and Gregorio Sibayan, whose heirs sued petitioner and the latter’s driver, Hermenegildo Aquino, for damages for breach of contract of carriage. Carolina Sabado, one of those injured, also sued petitioner and the driver for damages. The complaints were filed in the Court of First Instance of La Union. xxx Nor should it make any difference that the liability of petitioner springs from contract while that of respondents arises from quasi-delict. As early as 1931, we already ruled in Gutierrez vs. Gutierrez, 56 Phil., 177, that in case of injury to a passenger due to the negligence of the driver of the bus on which he was riding and of the driver of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally liable for damages. Some members of the Court, though are of the view that under the circ*mstances they are liable on quasi-delict.

3.

TESTS OF PROXIMATE CAUSE

As explained in Chapter 2, quasi-delictual actions involve three (3) requirements: 1) negligence; 2) damage; and 3) the causal connection between the damage and the negligent act or omission. In other words, proof of negligence and damage is not enough. It is still required that the plaintiff presents proof that the proximate cause of the damage to the plaintiff is the negligent act or omission of the defendant.

American case law distinguishes between cause-in-fact tests

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and policy tests of negligence. In determining the proximate cause of the injury, it is first necessary to determine if defendant’s negligence was the cause-in-fact of the damage to the plaintiff. If defendant’s negligence was not a cause-in-fact, the inquiry stops; but if it is a cause-in-fact, the inquiry shifts to the question of limit of liability of the defendant. The latter determination of the extent of liability involves a question of policy. Considerations of public policy may be given due weight in fixing the limits of legal liability and practical considerations must at times determine the bounds of correlative rights and duties as well as the point beyond which the courts will decline causal connection. (Comstock vs. Wilson, 76 A.L.R. 676, 257 NY 231). In other words, the question of proximate cause does not only involve cause and effect analysis. It also involves policy considerations that limit the liability of the defendants in negligence cases. The mere fact that the negligence of the defendant is a factor in bringing about the injury does not necessarily mean that he shall be liable. The dissenting opinion in the famous case of Palsgraf vs. Long Island R.R. (162 N.E. 99 [N.Y. 1928]; 59 ALR 1253) explained the concept of proximate cause: “It may well be that there is no such thing as negligence in the abstract. “Proof of negligence in the air, so to speak, will not do.” In an empty world negligence would not exist. It does involve a relationship between man and his fellows, but not merely a relationship between man and those whom he might reasonably expect his act would injure; rather, a relationship between him and those whom he does in fact injure. If his act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene. We now permit children to recover for the negligent killing of the father. It was never prevented on the theory that no duty was owing to them. A husband may be compensated for the loss of his wife’s services. To say that the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit facts to theory. An insurance company paying a fire loss recovers its payment of the negligent incendiary. We speak of subrogation — of suing in the right of the insured. Behind the cloud of words is the fact they hide, that the act, wrongful as to the insured, has also injured the company. Even if it be true that the fault of the father, wife, or insured will prevent recovery, it is because we consider the original negligence not the proximate cause of the injury. (Pollock, Torts [12th Ed.] 463). In the well-known Polemis Case, (1921) 3 K.B. 560, Scrutton, L.J., said that the dropping of a plank was negligent, for it might injure “workman or cargo or ship.” Because of either

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possibility, the owner of the vessel was to be made good for his loss. The act being wrongful, the doer was liable for its proximate results. Criticized and explained as this statement may have been, I think it states the law as it should be and as it is . . . The proposition is this: Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone. There needs be duty due the one complaining, but this is not a duty to a particular individual because as to him harm might be expected. Harm to some one being the natural result of the act, not only that one alone, but all those in fact injured may complain. We have never, I think, held otherwise. Indeed in the Di Caprio Case we said that a breach of a general ordinance defining the degree of care to be exercised in one’s calling is evidence of negligence as to every one. We did not limit this statement to those who might be expected to be exposed to danger. Unreasonable risk being taken, its consequences are not confined to those who might probably be hurt. If this be so, we do not have a plaintiff suing by “derivation or succession.” Her action is original and primary. Her claim is for a breach of duty to herself — not that she is subrogated to any right of action of the owner of the parcel or of a passenger standing at the scene of the explosion. The right to recover damages rests on additional considerations. The plaintiff’s rights must be injured, and this injury must be caused by the negligence. We build a dam, but are negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all this happened because of some reason other than the insecure foundation. But, when injuries do result from our unlawful act, we are liable for the consequences. It does not matter that they are unusual, unexpected, unforeseen, and unforeseeable. But there is one limitation. The damages must be so connected with the negligence that the latter may be said to be the proximate cause of the former. These two words have never been given an inclusive definition. What is a cause in a legal sense, still more what is a proximate cause, depend in each case upon many considerations, as does the existence of negligence itself. Any philosophical doctrine of causation does not help us. A boy throws a stone into a pond. The ripples spread. The water level rises. The history of that pond is altered to all eternity. It will be altered by other causes also. Yet, it will be forever the resultant of all causes combined. Each

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one will have an influence. How great only omniscience can say. You may speak of a chain, or, if you please, a net. An analogy is of little aid. Each cause brings about future events. Without each the future would not be the same. Each is proximate in the sense it is essential. But that is not what we mean by the word. Nor on the other hand do we mean sole cause. There is no such thing. Should analogy be thought helpful, however, I prefer that of a stream. The spring, starting on its journey, is joined by tributary after tributary. The river, reaching the ocean, comes from a hundred sources. No man may say whence any drop of water is derived. Yet, for a time distinction may be possible. Into the clear creek, brown swamp water flows from the left. Later, from the right comes water strained by its clay bed. The three may remain for a space, sharply divided. But at last inevitably no trace of separation remains. They are so commingled that all distinction is lost. As we have said, we cannot trace the effect of an act to the end, if end there is. Again, however, we may trace it part of the way. A murder at Sarajevo may be the necessary to an assassination in London twenty years hence. An overturned lantern may burn all Chicago. We may follow the fire from the shed to the last building. We rightly say that the fire started by the lantern caused its destruction. A cause, but not the proximate cause. What we do mean by the word “proximate” is that, because of convenience, of public policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my burning haystack set on fire my house and my neighbor’s. I may recover from a negligent railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The words we used were simply indicative of our notions of public policy. Other courts think differently. But somewhere they reach the point where they cannot say the stream comes from any one source.”

A.

CAUSE IN FACT TESTS

a.

Philosophical Foundations.

Cause is called by one philosopher as the cement of the universe. (J.L. Mackie, Cement of the Universe, citing David Hume). The description is no exaggeration because the idea of cause is so central to the human mind that it is difficult to imagine thought without it.

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Its explanatory power is unrivalled, its influence on the world views without parallel. System after system of philosophical reflection has relied on the idea of cause to elaborate meaning and value. (David Appelbaum, The Vision of Hume, 1996 Ed., p. 21). It has been observed that the dominant view in the determination of causality is what was observed by David Hume, said to be the greatest philosopher ever to write in the English language. (Marc Stauch, Causation, Risk and Loss of Chance in Medical Negligence, Oxford Journal of Legal Studies, Vol. 17, No. 2, Summer 1997, p. 205, citing David Hume, Treatise on Human Nature, Book I, Part III). Hume believed that if causation is but another mind construct, its use guarantees no revelation of reality. (David Appelbaum, supra). He observed in Inquiry Concerning Human Understanding that our knowledge of cause and effect “is not, in any instance, attained by reasoning a priori, but arises entirely from experience, when we find that any particular objects are constantly conjoined with each other.” (From: Ten Great Works of Philosophy, 1969 Ed., p. 173, 196 ed. by Robert Paul Wolff). Thus, our notion of causality according to Hume is not some mysterious quality in the objects themselves. Rather, we consider that there is such causality because we have hitherto observed that objects of those two types are regularly conjoined, we expect them to go together on this occasion too. (March Stauch, supra, p. 207). (Hume warned, however, that the connection is between thoughts in the mind and not events in the real world). David Hume further explained in Inquiry Concerning Human Understanding that: “It appears, then, that this idea of a necessary connection among events arises from a number of similar instances which occur, of the constant conjunction of these events; nor can that idea ever be suggested by any of these instances surveyed in all possible lights and positions. But there is nothing in a number of instances, different from every single instance, which is supposed to be exactly similar, except only that after a repetition of similar instances the mind is carried by habit, upon the appearance of one event, to expect its usual attendant, is the sentiment or impression from which we form the idea of power or necessary connection. Nothing further is in the case. Contemplate the subjects on all sides, you will never find any other origin of that idea. This is the sole difference between one instance, from which we can never receive the idea of connection, and a number of similar instances by which it is suggested. The first time a man saw the communication of motion by impulse, as by the shock of two billiard balls, he could not pronounce that the one event was connected, but only that it was conjoined with the other. After he has observed several instances of this nature, he then pronounces them to be

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connected. What alteration has happened to give rise to this new idea of connection? Nothing but that he now feels these events to be connected in his imagination, and can readily foretell the existence of one from the appearance of the other. When we say, therefore, that one object is connected with another, we mean only that they have acquired a connection in our thought and give rise to this inference by which they prove of each other’s existence — a conclusion which is somewhat extraordinary, but which seems founded on sufficient evidence. Nor will its evidence be weakened by any general diffidence of the understanding or skeptical suspicion concerning every conclusion which is new and extraordinary. No conclusions can be more agreeable to skepticism than such as make discoveries concerning the weakness and narrow limits of human reason and capacity. And what stronger instance can be produced of the surprising ignorance and weakness of the understanding than the present? For surely, if there be any relation among objects which it imports us to know perfectly, it is that of cause and effect. On this are founded all our reasonings concerning matter of fact or existence. By means of it alone we attain any assurance concerning objects which are removed from the present testimony of our memory and senses. The only immediate utility of all sciences is to teach us how to control and regulate future events by their causes. Our thoughts and inquiries are, therefore, every moment employed about this relation; yet so imperfect are the ideas which we form concerning it that it is impossible to give any just definition of cause, except what is drawn from something extraneous and foreign to it. Similar objects are always conjoined with similar. Of this we have experience. Suitably to this experience, therefore, we may define cause to be an object followed by another, and where all the objects, similar to the first, are followed by objects similar to the second. Or in other words, where, if the first object hand not been, the second never had existed. The appearance of a cause always conveys the mind, by a customary transition, to the idea of the effect. Of this also we have experience. We may, therefore, suitably to this experience, form another definition of cause and call it an object followed by another, and whose appearance always conveys the thought to that other. But thought both these definitions be drawn from circ*mstances foreign to the cause, we cannot remedy this inconvenience or attain any more perfect definition which may point out that circ*mstance in the cause which gives it a connection to its effect. We have no idea of this connection, nor even any distinct notion what it is we desire to know when we endeavor at a conception of it. We say, for instance, that the vibration of this string is the cause of this particular sound. But what do we mean by that affirmation? We either mean that his vibration is followed by this sound, and

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that all similar vibrations have been followed by similar sounds; or, that this vibration is followed by this sound, and that, upon the appearance of one, the mind anticipates the senses and forms immediately an idea of the other. We may consider the relation of cause and effect in either of these two lights; but beyond these we have no idea of it. (Ten Great Works of Modern Philosophy, pp. 231-232).

John Stuart Mill is said to have refined Hume’s account of causality. Mill explained that it may be that whenever C (Cause) is present, E (Effect) is seen to follow, in which case C is said to be sufficient for E; alternatively, it may be that whenever E is present, C is found to have occurred first, in which case C is necessary for E. Mill likewise explained that where C is in fact sufficient for E, it most invariably comprises a complex of conditions or a causal set, whose combined presence is then followed by E. (Marc Stauch, supra). Legal theorists Hart and Honore, explained that when we look for the cause of an occurrence, “we are looking for something, usually earlier in time, which is abnormal or an interference in the sense that it is not present when things are as usual.” (H.L.A. Hart and Tony Honore, Causation in Law, 2nd Ed., p. 46). “In adopting this approach, we distinguish between those members of the causal set which are standard and habitual feature of the environment (‘background conditions’) and a member whose presence represents a deviation from the norm (‘candidate condition’).” (Marc Stauch, supra, p. 208). J.L. Mackie explained that causal statements are commonly made in some context, against a background which includes the assumption of some causal field. He explained: “A causal statement will be the answer to a causal question, and the question, ‘What caused this explosion?’ can be expanded into ‘What made the difference between those times, or those cases, within a certain range, in which no such explosion occurred, and this case in which an explosion did occur? Both cause and effect are seen as differences within a field; anything that is part of the assumed (but commonly unstated) description of the field itself will, then, be automatically ruled out as a candidate for the role of cause. Consequently, if we take the field as being this block of flats as normally used and lived in, we must take Jone’s striking a match to light his cigarette as part of the field, and therefore not as the cause of, or even a cause of, or as causing, the explosion. What caused the explosion must be a difference in relation to the field, and the gas leak, or the presence of the gas that had leaked out, is the obvious candidate.” (J.L. Mackie, The Cement of the Universe, 1974 Ed.)

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H.L.A. Hart and A.M. Honore refer to the “cone of causation.” They observed that “if we look into the past of any given event, there is an infinite number of events, each of which is a necessary condition of the given event and so, as much as any other, is its cause. This is the “cone” of causation, so called because, since any event has a number of simultaneous conditions, the series fans out as we go back in time.” (HLA Hart and A.M. Honore, supra). In Paradoxes of Legal Science, Justice Cardozo also discussed the infinite number of events that preceded an event in question. He cited Lord Shaw who referred to what is known as the “net” of causation. Justice Cardozo discussed the problem of causation in law: “x x x The law has its problems of causation. It must trace events to its causes, or say with Hume that there is no cause, but only juxta-position or succession. If it recognizes causation, as it does, it must determine which antecedent shall be deemed to be the jural cause, the antecedent to be selected from an infinite series of antecedents as big with the event. We are told very often that the law concerns itself with proximate causes and no others. The statement is almost meaningless, or rather, to the extent that on the surface it has meaning, it is far away from truth. Sometimes in the search for the jural cause, the law stops close to the event, but sometimes and often, it goes many stages back. The principle of relativity of causation tells us that its methods could not well be different. ‘Cause,’ says Lord Haldane in his book, The Reign of Relativity, ‘is very indefinite expression. Externality to the effect is of its essence, but its meaning is relative in all cases to the subject-matter. For the housemaid the cause of the fire is the match she lights and applies. For the physicist the cause of the fire is the conversion of potential into kinetic energy, through the combination of carbon atoms with those of oxygen and the formation of oxides in the shape of gases which become progressively oxidized. For the judge who is trying a case of arson it is the wicked action of the prisoner in the dock. In each case there is a different field of inquiry, determined from a different standpoint. But no such field is even approximately exhaustive. The complete cause, if it could be found, would extend to the entire ground of the phenomenon that had to be explained, and this ground could be completely stated it would be indistinguishable from the effect itself, including, as it would do, the whole of the conditions of existence. Thus, we see that when we speak of the cause of an event we are only picking out what is relevant to the standpoint of a special inquiry, and is determined in its scope by the particular concept which our purpose makes us have in view. Here is the key to the juridical treatment of the problems of causation. We pick out the cause which our judgment ought to

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be treated as the dominant one with reference, not merely to the event itself, but to the jural consequences that ought to attach to the event. There is an opinion by Lord Shaw in the English House of Lords in which he refers to the common figure of speech whereby a succession of causes is represented as a chain. He reminds us that the figure, though convenient, is inadequate. ‘Causation,’ he says, ‘is not a chain, but a net.’ At each point, influences, forces, events, precedent and simultaneous meet, and the radiation from each point extends to infinitely. From this complex web the law picks out now this cause and now that one. Thus, the same event may have one jural cause when it is considered as giving rise to a cause of action upon contract, and another when it is considered as giving rise to a cause of action for a tort. The law accepts or rejects one or another as it measures its own ends and the social benefits or evils of rejection or acceptance.”

b.

Main Tests.

As explained earlier, the initial step in determining proximate cause is to determine if the negligent act or omission of the defendant is the “cause-in-fact” of plaintiff’s damage or injury. Under the rubric of “cause-in-fact,” courts address generally the empirical question of causal connection. (Epstein, p. 467). In an ordinary vehicular accident, for example, the defendant will not be made liable for the injury if he can establish that the plaintiff had that injury prior to the accident. The defendant did not cause (in fact) any harm which occurred before his wrongful conduct; nor is the defendant liable for any harm that was caused by some independent event. (ibid.). It is necessary that there is proof that defendant’s conduct is a factor in causing plaintiff’s damage. (57 Am. Jur. 2d 497). What needs to be determined is whether the defendant’s act or omission is a causally relevant factor. In making such determination, two main tests are being applied: 1) the “but for” test or the sine qua non test; and 2) the substantial factor test.

(1) Sine Qua Non Test.

The basic conception of cause is the alternative definition of David Hume in the above-quoted work (although the “in other words” definition is not the same as the first definition). He said: “Or in other words, where if the first object had not been, the second never had existed.” This concept is the foundation of what is known as the but for test.

Simply stated, defendant’s conduct is the cause in fact of the

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injury under the but for test if the damage would not have resulted had there been no negligence on the part of the defendant. Conversely, defendant’s negligent conduct is not the cause in fact of the plaintiff’s damage if the accident could not have been avoided in the absence thereof. (57 Am. Jur. 2d 501-502). For example, if the plaintiff was injured because he was hit by a portion of a negligently constructed wall which collapsed, the negligence in the construction of the wall is the cause in fact of the injury because the injury to the plaintiff would not have resulted had there been no negligence on the part of the defendant. On the other hand, if the plaintiff was hit by an object which fell from the window of the same building, the negligent construction of the wall is not the cause in fact of the injury because the accident could not have been avoided in the absence thereof.

(2) Substantial Factor Test.

The substantial factor test, on other hand, makes the negligent conduct the cause in fact of the damage if it was a substantial factor in producing the injuries. In order to be a substantial factor in producing the harm, the causes set in motion by the defendant must continue until the moment of the damage or at least down the setting in motion of the final active injurious force which immediately produced or preceded the damage. (65 CJS 1157). If the defendant’s conduct was already determined to be the cause in fact of the plaintiff’s damage under the but for test, it is necessarily the cause in fact of the damage under the substantial factor test. In other words, if the accident would not have occurred had there been no negligence of the part of the defendant, the defendants conduct is a substantial factor in bringing about the damage or injury. Whenever this test is applied, the same is being applied both as “cause-in-fact” test and a policy test. The substantial factor test is important in cases where there are concurrent causes. Here the issues are not factual but conceptual: when are harms attributable to the defendant whose own actions are combined with those of other persons and natural events? (Epstein, p. 468). The application of the but for test will lead to an absurd conclusion if concurrent causes are involved. For example, the plaintiff was injured when he fell from a horse which was frightened by two approaching vehicles. If the drivers of both vehicles, A and B, were negligent and either vehicle was sufficient to frighten the horse, the application of the but for test will result to an absurd conclusion that the negligence of either driver cannot be considered the cause in fact

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of the injury because the damage have likewise resulted if only one driver was negligent. It cannot be said that the damage would not have resulted had there been no negligence on the part of A. It cannot likewise be said that damage would not have resulted had there been no negligence on the part of B. However, under the substantial factor test, the concurrent causes will still be considered the cause if fact of the injury because the negligence of both A and B are substantial factors in bringing about the injury.

(3) Necessary and Sufficient (NESS) Test.

Another test, referred to as the NESS Test, was recently developed to solve problems regarding concurrent causes. The act or omission is a cause-in-fact if it is a necessary element of a sufficient set (NESS). However, the test is based on the concept of causation by David Hume and John Stuart Mill, and systematically elaborated for legal purposes by Professors Hart and Honore in Causation in Law and Professor Wright in Causation in Tort Law (John G. Fleming, The Law of Torts, 7th Edition, p. 173). Professor Fleming restated the test as follows: “Whether a particular condition qualifies as a casually relevant factor will depend on whether it was necessary to complete a set of conditions jointly sufficient to account for the given occurrence’’ (ibid., p. 173). The meaning of the terms “necessary” and “sufficient” are consistent with how they are understood in Logic. Thus, a “necessary condition” for the occurrence of a specified event is a circ*mstance in whose absence the event cannot occur while a “sufficient condition” for the occurrence of an event is a circ*mstance in whose presence the event must occur (Irving Copi and Carl Cohen, Introduction to Logic, 10th Edition, pp. 496-497). Otherwise stated, “sufficient” means that the existence of the cause ensures that its effects also exist while “necessary” means that its non-existence ensures in the same sense that its effect do not exists. Thus, for the Cause (C) to be sufficient for the Effect (E) is for E to exist if C does; and that for C to be necessary for E is for E not to exist if C does not (D.H. Mellon, The Facts of Causation, 1995 Ed., pp. 13-14). Professor Richard W. Wright explained the NESS test in this wise: “The basic concept of causation is formalized in the NESS (necessary element of a sufficient set) test of causal contribution, which in its full form states that a condition contributed to some consequence if and only if it was necessary for the sufficiency of a set of existing antecedent conditions that was sufficient for the oc-

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currence of the consequence. The relevant notion of sufficiency is not merely logical or empirical , but rather requires each element of the applicable causal generalization, in both the antecedent (“if” part) and the consequent (“then” part) must have been in actual existence (concretely instantiated) on the particular occasion. The NESS test subsumes and integrates the Restatement’s necessary-condition test and its (cleaned up) independently-sufficient-condition test, which are merely corollaries of the NESS test that apply in certain types of situations. The NESS test reduces down to the necessary condition (but-for) test if there was only one set of conditions that was or would have been sufficient for the occurrence of the consequence on the particular occasion, or, if there was more than one such set, if the condition was necessary for the sufficiency of each of the sets. Yet the NESS test is more inclusive than the but-for test. A condition was a cause under the NESS test if it was necessary for the sufficiency of any actually sufficient set, even if, due to other duplicative (actually sufficient) or preempted (would have been sufficient) set of conditions, it was not — as required by the but-for test –– necessary in the circ*mstances for the consequence.’’ (Richard W. Wright, Once More into the Bramble Bush: Duty, Causal Contribution, and the Extent of Legal Responsibility, 54 Vanderbilt Law Review 27 [2001]; See also, Wright, Causation in Tort Law, 73 Calif. L.Rev. 1735 [1985]; Wright, Causation, Responsibility, Risk, Probability, Naked Statatistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 IOWA L.Rev 1001 [1988])

The test was also explained in this wise: The more accurate ‘NESS test’, developed by Richard Wright in North America following suggestions by J.L. Mackie, and Hart and Honore, expressly allows for the contrary possibility. In such cases, it holds that our candidate condition may still be termed ‘a cause’ where it is shown to be a necessary element in just one of several co-present causal sets each independently sufficient for the effect. There are in fact two ways that such co-presence can manifest itself, and Wright terms these, respectively, ‘duplicative’ and ‘pre-emptive’ causation. The first occurs when two (or more) such sets operate simultaneously to produce the effect; in other words, the effect is over-determined. This was the case in our previous example of the damage to a building by fire: the conflagration began in two places at once, through the carelessly discarded cigarette and the short-circuit, respectively. It is apparent that, in contrast to the ‘but for’ test (whose counterintuitive result is that neither was a cause), the NESS test allows us to regard both the cigarette and short-circuit as causative of the damage.

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Pre-emptive causation, by contrast, occurs when, through coming about first in time, one causal set ‘trumps’ another, potential set lurking in the background. The causal potency of the latter is frustrated for, as Wright states, a ‘necessary condition for the sufficiency of any set of actual antecedent conditions is that the injury not have occurred already as a result of other actual conditions outside the set.’ An example offered by Wright of causal pre-emption is where D shoots and kills P as he is about to drink from a cup poisoned by C. Here, the NESS test makes it clear that it is D’s act, on the other hand, does not satisfy the NESS test: poison does not feature in the list of necessary elements in any operative set of conditions sufficient for P’s death; instead it is a necessary part of a potential but, as things turn out, inoperative, causal set.” xxx Causation cases involving the presence of more than one causal set not only show up the limitation of the ‘but for’ test; there are also instances of a broader concept, namely ‘multiple causation.’ The latter arises where, in addition to mere background conditions, we are aware of more than one candidate condition competing for the title ‘cause’ of the event. In the case of co-present causal sets, the phenomenon occurs because each of the sets will crystallize around at least one candidate condition. On the other hand, multiple causation can also occur within the confines of a single causal set. This will be the case if there are a number of candidate conditions (deviations from the norm), which, taken one at a time, would not in fact have been sufficient to complete the set in conjunction only with the background conditions. Wright mentions the example of a corpulent man who slips while running down some poorly lit stairs: here, there are three possible candidates for causing the fall and it may be that the accident came about only through the cumulative working of all three.” (Marc Stauch, supra, pp. 210-211)

A better understanding of the last discussed test can be derived by analyzing a given situation using NESS terms. Let us take an example similar to that given by Professor Wright. Suppose a man slips while running down a slippery stairs and two candidate causes can be seen because they are not normally present: (a) the man slipped simply because he was running; and (b) the man slipped because the stairs is slippery. There are at least four possibilities here. a) The slippery stairs is the only cause. The fact that the stairs was slippery was a necessary element of a sufficient set to make him slip and the fact that the man was running was not part of a set that is sufficient. The man would have slipped even if he was not running.

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b) The slippery stairs is only one of the causes simultaneously occurring. The fact that the man was running was sufficient for the injury but the fact that the stairs was slippery was equally sufficient. The operation of the running did not pre-empt but rather duplicated the effect of the slippery stairs. In other words, there are two overlapping causal sets; the causes are over-determined. c) The slippery stairs was a member of a causal set contributing to the effect. The slippery stairs alone would not have been sufficient to cause the injury and the fact that the man was running was equally insufficient. The injury was a cumulative effect of all the causes, including the slippery stairs and running. d) The slippery stairs may not have caused the injury. One possibility is that the man’s running may have been the only cause; it is part of a set that was necessary. Another possibility is that both causes are sufficient and could have independently caused the injury but the fact that the man was running pre-empted the other, slippery stairs; the causal potency of the slippery stairs was frustrated. The slippery stairs will be considered a cause-in-fact of the injury in the situations contemplated in (a), (b) and (c) and obviously not in situation (d). It cannot be overemphasized, however, that the problem at this stage “is concerned with a question which arises (at least in theory) in every case, that is to say, whether the defendant’s act (or omission) should be excluded from the events which contributed to the occurrence of the plaintiff’s loss. If it is so excluded, that is the end of the case, for it there is no connection between the defendant’s act and the loss there is no reason for a private law system of liability to operate with regard to him.” (W.V.H. Rogers, Winfield & Jolowicz on Torts, 1998 15th Edition, p. 195). The first stage of causation is primarily a matter of historical mechanics although it necessarily involves the questions about what would have happened in different circ*mstances. (ibid., p. 196). However, in most cases, the first stage of causation inquiry is comparatively unimportant in practice because it will usually be obvious whether it is satisfied and it will not form the basis of argument or adjudication. It eliminates the irrelevant but its function is certainly not to provide a conclusive determination of the defendant’s liability. (ibid., p. 197). B.

POLICY TESTS.

A finding that the defendant’s negligence was the cause in fact of

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the damage to the plaintiff will not necessarily result to a finding that the same negligence is the proximate cause of the damage or injury to the plaintiff. The law, as a matter of policy, may limit the liability of the defendant to certain consequences of his action. If the damage or injury to the plaintiff is beyond the limit of the liability fixed by law, the defendant’s conduct cannot be considered the proximate cause of the damage. Such limit of liability is determined by applying what are known as policy tests. Thus, in deciding negligence cases, it is likewise necessary to determine the policy tests adopted in a particular jurisdiction. The different policy tests which are being used to determine the extent of the defendant’s liability for negligence include: a) foreseeability test; b) natural and probable consequence test; c) natural and ordinary or direct consequences test; d) hindsight test; e) orbit of risk test; and f) the substantial factor test. The above-specified policy tests may be divided into two (2) groups. The first group includes the element of foreseeability while the other does not require that the injury is within the foreseeable risk created by the defendant. The first may be referred to as the “foresight perspective” while the other as the “directness perspective.” They were briefly explained in this wise: “Analytically, the problem of proximate cause in turn can be addressed in two distinct ways. One possibility is to ask whether the chain of events that in fact occurred was sufficiently “foreseeable,” “natural” or “probable” at the outset for the defendant to be held liable for the ultimate harm that ensued, assuming that causation in fact can be established. That judgment is made from the standpoint of the defendant at the time the tortious conduct was committed. The second approach starts with the injury and works back towards the wrongful action of the defendant, seeking to determine whether any act of a third party or the plaintiff, or any event, severed the causal connection between the harm and the defendant’s wrongful conduct. Here, the question is only whether, when all the evidence is in, it is permissible to say that the defendant “did it,” that is, brought about the plaintiff’s harm.” (Epstein, p. 468).

Under the foreseeability test and other similar tests like the natural and probable consequence test, the defendant is not liable for unforeseeable consequences of his acts. The liability is limited within the risk created by the defendant’s negligent act. Direct consequences tests, on the other hand, makes the defendant liable for damages which are beyond the risk. Direct consequences are those which follow in the sequence from the effect of the defendant’s act

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upon conditions existing and forces already in operation at the time, without the intervention of any external forces, which come into active operation later. (Prosser and Keeton, p. 294). The justification for introducing the element of foreseeability in the determination of proximate cause is stated in Overseas Tankship (U.K.) Ltd. vs. Morts Dock & Engineering Co., Ltd. (A.C. 388 [P.C. Aust.] [1961] or what is known as the Wagon Mound 1 case) in this wise: “Enough has been said to show that the authority of Polemis has been severely shaken though lip service has from time to time been paid to it. In their Lordships’ opinion it should no longer be regarded as good law. It is not probable that many cases will for that reason have a different result, though it is hoped that the law will be thereby simplified, and that, in some cases, at least, palpable injustice will be avoided. For it does not seem consonant with the current ideas of justice or morality that for an act of negligence, however slight or venial, which results in some trivial foreseeable damage the actor should be liable for all consequences however unforeseeable and however grave, so long as they can be said to be ‘direct.’ It is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule, to demand less is to ignore the civilized order requires the observance of a minimum standard of behaviour. This concept applied to the slowly developing law of negligence has led to a great variety of expressions which can, as it appears to their Lordship, be harmonized with little difficulty with the single exception of the so-called rule in Polemis. For, if it is asked why a man should be responsible for the natural or necessary or probable consequences of his act (or any other similar description of them) the answer is that it is not because they are natural or necessary or probable, but because, since they have this quality, it is judged by the standard of the reasonable man that he ought to have foreseen them. Thus, it is that over and over again it has happened that in different judgments in the same case, and sometimes in a single judgment, liability for a consequence has been imposed on the ground that it was reasonably foreseeable or alternatively, on the ground that it was natural or necessary or probable. The two grounds have been treated as coterminous, and so they largely are. But, where they are not, the question arises to which the wrong answer was given in Polemis. For, if some limitation must be imposed upon the consequences for which the negligent actor is to be held responsible — and all are agreed that some limitation there must be — why should that test (reasonable foreseeability) be rejected which, since he is judged by what the

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reasonable man ought to foresee, corresponds with the common conscience of mankind, and a test (the ‘direct’ consequences) be substituted which leads to nowhere but the never-ending and insoluble problems of causation. ‘The lawyer,” said Sir Frederic Pollock, ‘cannot afford to adventure himself with philosophers in the logical and metaphysical controversies that beset the idea of cause.’ Yet this is just what he has most unfortunately done and must continue to do if the rule in Polemis is to prevail. x x x”

The proponents of the direct consequence test and other similar tests which do not require foreseeability answers the above ratiocination by explaining that “if a great loss is to be suffered, it is better that it should fall upon the wrongdoer than upon one innocent victim, or a hundred. ‘The simple question is, whether a loss, that must be borne somewhere, is to be visited on the head of the innocent or guilty.’” (Prosser and Keeton, p. 293, citing Fent vs. Toledo, Peoria & Western Railway Co., 1871, 59 Ill. 349). 4.

TESTS APPLIED IN THE PHILIPPINES

The determination of the applicable test is likewise a problem in this jurisdiction. The problem is being compounded by the fact that there is little literature on proximate cause. Examination of decisions of the Supreme Court and the Court of Appeals do not immediately reveal the applicable rule because more often than not, the discussion of proximate cause contain mere salutary citations of definitions and previous decisions. Nevertheless, it had also been acknowledged that the determination of proximate cause depends on whether public policy requires that the plaintiff or defendant should bear the loss. (Reyes and Puno, p. 167). The difference between this jurisdiction, however, with that of other jurisdictions is that the New Civil Code contains a chapter on Damages which specifies the type of damage for which the defendant may be held liable as well as the limit of such liability. In other words, the policy on the kind of damage and the extent of damage to be awarded to the plaintiff is already expressed in statutory provisions.

A.

CAUSE-IN-FACT TESTS.

The “but for” test is being applied in this jurisdiction. The definition of proximate cause, in fact, includes a statement which indicates the applicability of the “but for test.” The definition in Bataclan vs. Medina (supra) includes a statement that the cause

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should be that without which the damages would not have resulted. The substantial factor test is likewise being applied in this jurisdiction. The substantial factor test as it is contemplated in the Restatement, Second, of Torts of the American Law Institute had been cited in cases decided in this jurisdiction. (Philippine Rabbit vs. Court of Appeals, G.R. No. 66102, Aug. 30, 1990). The very same definition adopted in Bataclan reflects the observation of one legal writer that “the issue of proximate causation asks whether the defendant’s conduct could be regarded as a ‘substantial factor’ in bringing about plaintiff’s harm, and that inquiry often is translated into one that asks whether any of the human actions or natural events that occur after defendant’s conduct but before the plaintiff’s harm severs the causal connection between them.” (Epstein, p. 468). It is believed that the “NESS” test can also be applied in multiple causation cases. There is no statutory provision that fixes the applicable test hence the NESS test is an acceptable test and it might even be superior in multiple causation cases. CASE: PILIPINAS BANK vs. HON. COURT OF APPEALS 234 SCRA 435 [1994] xxx

The facts as found both by the trial court and the respondent court are:

“As payments for the purchased shoe materials and rubber shoes, Florencio Reyes issued postdated checks to Winner Industrial Corporation for P20,927.00 and Vicente Tui, for P11,419.50, with due dates on October 10 and 12, 1979, respectively. To cover the face value of the checks, plaintiff, on October 10, 1979, requested PCIB Money Shop’s manager Mike Potenciano to effect the withdrawal of P32,000.00 from his savings account therein and have it deposited with his current account with Pilipinas Bank (then Filman Bank), Biñan Branch. Roberto Santos was requested to make the deposit. In depositing in the name of FLORENCIO REYES, he inquired from the teller the current account number of Florencio Reyes to complete the deposit slip he was accomplishing. He was informed that it was ‘815’ and so this was the same current account number he placed on the deposit slip below the depositor’s name FLORENCIO REYES. Noting that the account number coincided with the name Florencio, Efren Alagasi, then Current Account Bookkeeper of Pilipinas Bank, thought it was for Florencio Amador who owned the listed account number. He, thus, posted the deposit in the latter’s account not noticing that the depositor’s

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surname in the deposit slip was REYES. On October 11, 1979, the October 10 check in favor of Winner Industrial Corporation was presented for payment. Since the ledger of Florencio Reyes indicated that his account had only a balance of P4,078.43, it was dishonored and the payee was advised to try it for next clearing. On October 15, 1979, the October 10, 1979 check was redeposited but was again dishonored. Likewise, the October 12, 1979 check in favor of Vicente Tui when presented for payment on that same date met the same fate but was advised to try the next clearing. Two days after the October 10 check was again dishonored, the payee returned the same to Florencio Reyes and demanded a cash payment of its face value which he did if only to save his name. The October 12, 1979 check was redeposited on October 18, 1979, but again dishonored for the reason that the check was drawn against insufficient fund. Furious over the incident, he immediately proceeded to the bank and urged an immediate verification of his account. Upon verification, the bank noticed the error. The P32,000.00 deposit posted in the account of Florencio Amador was immediately transferred to the account of Reyes upon being cleared by Florencio Amador that he did not effect a deposit in the amount of P32,000.00. The transfer having been effected, the bank then honored the October 12, 1979 check.’’ (Exh. “C”). On the basis of these facts, the trial court ordered petitioner to pay to the private respondent: (1) P200,000.00 as compensatory damages; (2) P100,000.00 as moral damages; (3) P25,000.00 as attorney’s fees; and (4) the costs of suit. On appeal to the respondent court, the judgment was modified as aforestated.

In this petition for review, petitioner argues: “I.

Respondent Court of Appeals erred on a matter of law, in not applying the first sentence of Article 2179, New Civil Code, in view of its own finding that respondent Reyes’ own representative committed the mistake in writing down the correct account number;

II.

Respondent Court of Appeals erred, on a matter of law, in holding that respondent Reyes has the right to recover moral damages and in awarding the amount of P50,000.00, when there is no legal nor factual basis for it;

III. The Honorable Court of Appeals erred, on a matter of law, in holding petitioner liable for attorney’s fees in the amount of P20,000.00, when there is no legal nor factual basis for it.”

We find no merit in the petition.

First. For Article 2179 of the Civil Code to apply, it must be established that private respondent’s own negligence was the immediate and proximate cause of his injury. The concept of proximate cause is well defined in our corpus of jurisprudence as “any cause which, in natural and continuous

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sequence, unbroken by any efficient intervening cause, produces the result complained of and without which would not have occurred and from which it ought to have been foreseen or reasonably anticipated by a person of ordinary case that the injury complained of or some similar injury, would result therefrom as a natural and probable consequence.” In the case at bench, the proximate cause of the injury is the negligence of petitioner’s employee in erroneously posting the cash deposit of private respondent in the name of another depositor who had a similar first name. As held by the trial court:

x x x

x x x

xxx

“Applying the test, the bank employee is, on that basis, deemed to have failed to exercise the degree of care required in the performance of his duties. As earlier stated, the bank employee posted the cash deposit in the account of Florencio Amador from his assumption that the name Florencio appearing on the ledger without, however, going through the full name, is the same Florencio stated in the deposit slip. He should have continuously gone beyond mere assumption, which was proven to be erroneous, and proceeded with clear certainty, considering the amount involved and the repercussions it would create on the totality of the person notable of which is the credit standing of the person involved should a mistake happen. The checks issued by the plaintiff in the course of his business were dishonored by the bank because the ledger of Florencio Reyes indicated a balance insufficient to cover the face value of checks.” Second. In light of this negligence, the liability of petitioner for moral damages cannot be impugned. So we held in Bank of the Philippine Islands vs. IAC, et al.: “The bank is not expected to be infallible but, as correctly observed by respondent Appellate Court, in this instance, it must bear the blame for not discovering the mistake of its teller despite the established procedure requiring the papers and bank books to pass through a battery of bank personnel whose duty it is to check and countercheck them for possible errors. Apparently, the officials and employees tasked to do that did not perform their duties with due care, as may be gathered from the testimony of the bank’s lone witness, Antonio Enciso, who casually declared that ‘the approving officer does not have to see the account numbers and all those things. Those are very petty things for the approving manager to look into.’ (p. 78, Record on Appeal). Unfortunately, it was a ‘petty thing,’ like the incorrect account number that the bank teller wrote on the initial deposit slip for the newly-opened joint current account of the Canlas spouses, that sparked this half-a-million-peso damage suit against the bank. While the bank’s negligence may not have been attended with malice and bad faith, nevertheless, it caused serious anxiety, embarrassment and humiliation to the private respondents for which they are entitled to recover reasonable moral damages. (American Express International, Inc. IAC, 167 SCRA 209). The award of reasonable attorney’s fees is proper for the private respondents were compelled to litigate to protect their interest. (Art. 2208, Civil Code). However, the absence of malice and bad faith renders the award

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of exemplary damages improper. (Globe Mackay Cable and Radio Corp. vs. Court of Appeals, 176 SCRA 778).”

B.

POLICY TESTS.

a.

Rule under the 1889 Civil Code.

There is a conflict of opinion regarding the applicability of the foresight perspective in determining proximate cause. The ruling in the early case of Algarra vs. Sendejas (27 Phil. 284 [1914]) indicate the applicability of the foreseeability test: “x x x The liability of the present defendant includes only those damages which were “foreseen or may have been foreseen” at the time of the accident, and which are the necessary and immediate consequences of his fault. In discussing the question of damages under the civil law, Gutierrez (vol. 4, pp. 64, 65) says: “In the impossibility of laying down a surer rule, the Code understands known damages to be those which in the prudent discernment of the judge merit such a qualification, although their consequences may not be direct, immediate, inevitable. “If it is a question of losses occasioned through other causes, except fraud, and the contracting parties have not covenanted any indemnity for the case of nonfulfillment, then the reparation of the losses or damages shall only comprise those that are the necessary and immediate consequence of that fault. This rule may not be very clear, but is the only one possible in a matter more of the domain of prudence than of law.” In its decision of April 18, 1901, the Supreme Court of Spain said: “Neither were the errors incurred that are mentioned in the third assignment, since the indemnity for damages is understood to apply to those caused the complainant directly, and not to those which, indirectly and through more or less logical deductions, may affect the interests of the Ayuntamiento de Viana, as occurs in the present case where the increase of wealth concerns not only the Ayuntamiento but also the province and the state, yet, not on this account does any action lie in their behalf as derived from the contracts with Urioste.” This doctrine is also affirmed in the more recent decision of March 18, 1909, in the following words: “For the calculation of the damages claimed, it is necessary, pursuant to the provisions of Article 924 of the Law of Civil Procedure to give due regard to the nature of the obligation that was unfulfilled and to the reasonable consequences of its nonfulfillment, because the conviction sought can be imposed only when there exists a natural and true

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relation between such nonfulfillment and the damages, whatever reason there may be to demand them on another account.” In the case of Garcia Gamo vs. Compañia Madrileña de Alumbrado, etc. (101 Jurisp., 662), it appeared that an employee of the defendant company whose duty it was to clean and light the street lamps left a stepladder leaning against a tree which stood in a public promenade. The seven-year old son of the plaintiff climbed the tree by means of the ladder, and while endeavoring to cut some branches fell to the ground, sustaining severe injuries which eventually caused his death. The plaintiff lost in the lower courts and on appeal to the Supreme Court the decision of those lower courts was affirmed with the following statement: “That in this sense — aside from the fitness of the judgment appealed from, inasmuch as the acquittal of the defendant party resolves all the issues argued at the trial, if no counterclaim was made — the assignments of error in the appeal cannot be sustained, because, while the act of placing the stepladder against the tree in the manner and for the purposes aforestated, was not permissible it was regularly allowed by the local authorities, and that fact did not precisely determine the injury, which was due first to the abandonment of the child by his parents and secondly to his own imprudence, according to the findings of the trial court, not legally objected to in the appeal; so it is beyond peradventure that the circ*mstances necessary for imposing the obligations arising from guilt or negligence do not concur in the present case.” The court here simply held that the injury to the child could not be considered as the probable consequence of an injury which could have been foreseen from the act of the company’s employee in leaving the ladder leaning against the tree. In De Alba vs. Sociedad Anonima de Tranvias (102 Jurisp., 928), a passenger was standing on the platform of a street car while it was in motion when, or rounding a curve, the plaintiff fell off and under the car, thereby sustaining severe injuries which took several months to heal. He was not allowed to recover in the lower courts and on appeal the Supreme Court sustained the inferior tribunals saying: “Whereas, considering the circ*mstances of the accident that happened to D. Antonio Morales de Alba, such as they were held by the trial court to have been proved, the evidence does not disclose that any liability whatever in the said accident, for acts or omissions, may be charged against the employees of the street car, as being guilty through fault or negligence, since it was shown that the car was not traveling at any unusual speed nor was this increased on rounding the curve, but that the ac-

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cident was solely due to the fact that the car in turning made a movement which caused the plaintiff to lose his balance; and whereas no act whatever has been proved of any violation of the regulations, nor can it be required of street-car employees, who have to attend to their respective duties, that they should foresee and be on the alert to notify the possibility of danger when not greater than that which is more or less inherent to this mode or travel; therefore the appeal can not be upheld, and with all the more reason since the passenger who takes the risk of travelling on the platform, especially when there is an unoccupied seat in the car, should be on his guard against a contingency so natural as that of losing his balance to a greater or less extent when the car rounds a curve.” In Crespo vs. Garcia (112 Jurisp., 796), the plaintiff, a servant woman, 72 years old, was injured in the performance of her duties by the sudden and unexpected failure of the upper floor of a house in which she was working. The owner and the architect of the building were made defendants and after due trial it was held that no responsibility attached to them for the failure of the floor, consequently the plaintiff was not allowed to recover.

On her appeal to the Supreme Court that tribunal said:

“Whereas, the trial court held, in view of all the evidence adduced, including the expert and other testimony, that the act which occasioned the injury suffered by Doña Maria Alonso Crespo, was accidental, without fault of anybody, and consequently fortuitous, and that, in so considering it to absolve the defendants, he did not incur the second error assigned on the appeal, because, without overlooking the import and legal value of the affidavit adduced at the trial, he held that the defendants in their conduct were not liable for any omission that might constitute such fault or negligence as would oblige them to indemnify the plaintiff; and to support the error assigned no legal provision whatever was cited such as would require a different finding, nor was any other authentic document produced than the aforesaid affidavit which contained an account of the ocular inspection and the expert’s report, which, as well as the testimony of the witnesses, the trial court was able to pass upon in accordance with its exclusive power — all points of proof which do not reveal any mistake on the part of the judge, whose opinion the appellant would substitute with his own by a different interpretation.” These authorities are sufficient to show that liability for acts ex delicto under the Civil Code is precisely that embraced within the “proximate cause” of the Anglo-Saxon law of torts. “The general rule, as frequently stated, is that in order that an act or omission may be the proximate cause of an injury, the

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injury must be the natural and probable consequence of the act or omission and such as might have been foreseen by an ordinarily responsible and prudent man, in the light of the attendant circ*mstances, as likely to result therefrom . . . “According to the later authorities foreseeableness, as an element of proximate cause, does not depend upon whether an ordinarily reasonable and prudent man would or ought in advance to have anticipated the result which happened, but whether, if such result and the chain of events connecting it with the act complained of had occurred to his mind, the same would have seemed natural and probable and according to the ordinary course of nature. Thus, as said in one case, ‘A person guilty of negligence, or an unlawful act, should be held responsible for all the consequences which a prudent and experienced man, fully acquainted with all the circ*mstances which in fact existed, would at the time of the negligent or unlawful act have thought reasonable to follow, if they had occurred to his mind.’ (Wabash R. etc. Co. vs. co*ker, 81 Ill. App. 660, 664; Cooley on Torts, sec. 15).” “The view which I shall endeavor to justify is that, for the purpose of civil liability, those consequences, and those only, are deemed ‘immediate,’ ‘proximate,’ or, to anticipate a little, ‘natural and probable,’ which a person of average competence and knowledge, being in the like case with the person whose conduct is complained of, and having the like opportunities of observation, might be expected to foresee as likely to follow upon such conduct. This is only where the particular consequence is not known to have been intended or foreseen by the actor. If proof of that be forthcoming, whether the consequence was ‘immediate’ or not does not matter. That which a man actually foresees is to him, at all events, natural and probable.” (Webb’s Pollock on Torts, p. 31).

Almost half a century thereafter, Justice J.B.L. Reyes clarified that the rule under the Old Civil Code is the same as the rule in contracts. He explained in Silva vs. Peralta (2 SCRA 1025 [1961]) that: “As to the award of damages, against Saturnino Silva, it is to be noted that while the latter’s liability was extra-contractual in origin, still, under the Civil Code in 1889, the damages resulting from a tort are measured in the same manner as those due from a contractual debtor in bad faith, since he must answer for such damages, whether he had foreseen them or not, just as he must indemnify not only for damnum emergens but also for lucrum cessans, as required by Article 1106. Article 1002 of the 1889 Civil Code of Spain formulated no standard for measuring quasi-delictual damages, the article merely prescribing that the

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guilty party “shall be liable for the damages so done.” This indefiniteness led modern civil law writers to hold that the standards set is Articles 1106 and 1107, placed in the general rules on obligations, “rigen por igual para las contractuales y las extras contractuales, las preestablecidas y las que borten ex-lege de actos ilicitos.” (Roces, Notes to Fisher) “Los Daños Civiles y su Reparación.” (1927). Since liability for damages arises in either case from a breach of a pre-existing obligation (to behave without fault or negligence in case of quasi-delicts, and, in case of contracts, to observe the conduct required by the stipulation), it is logical to conclude with Planiol that “La responsibilidad contractual y la extra contractual tienen el mismo fundamento, por lo que se hallan sujetas en principio a idénticas reglas.” (6 Planiol-Ripert, Derecho Civil, p. 529, sec. 378). Giogi is of the same opinion. (5 Teoria de Obligaciones, pp. 133, 207-208). So is de CossÌo y Corral (“El Dolo en el Derecho Civil,’’ pp. 132-133): “Pero si ello es asi, resulta claro que la aproximación entre esta clase de culpa y la contractual, es cada día mayor, hasta el extremo de que, seg˙n hemos antes indicado, solamente se pueden seúalar diferencias accessorias, y muchas veces aparentes entre una y otra. En primer tÈrmino, porque el concepto de culpa contractual se extiende no sólo a las obligaciones nacidas ex contractu, sino, en general, a todas aquellas preexistentes entre las partes a la realidad del acto dañoso (obligaciones legales). De otra parte, porque si bien consideramos las cosas, la responsabilidad llamada extra-contractual, deriva siempre del quebrantamiento de un deber general, implicitamente reconocido por la ley cual es el de que todos deben actual socialmente con la debida dili-gencia, evitando causar daño a los demás, y un derecho que todo ciudadano tiene, correlativamente, a no ser dañado en su patrimonio y bienes por la conducta dolosa o negligente de los demás. En tás sentido, habría siempre entre el autor del daño y la victima, una relación juridica, constituída por este derecho y aquel deber. Esta idea de unidad entre amba instituciones se traduce en que las pretendidas diferencias en orden a la extensión de la indemnización, en ambos casos, no puedan defenderse a la vista de los pseceptos de nuestro Derecho positivo. En efecto, no contiene el Capítulo II del Título XVI del Libro del nuestro Código civil norma alguan referente a la extensión de la indemnización que en cada caso haya de prestarse, lo que nos obliga forzosamente a acudir a las normas generales contenidas en el capítulo II, del Título I de dicho libro IV, relativo a los “efectos de las obligaciones”, que ninguna razón permite limitar a las de naturaleza contractual, ya que el artículo 1.101 habla genéricamente de obligaciones; el 1.102, de “todas las obligaciones”; el 1.103, de “toda clase de obligaciones”, y en ninguno de los artículos subsiguientes se hace refe-rencia a una clase especial de obligaciones, sino a todas en

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general. Que las disposiciones de este Capítulo son aplicables en los casos de culpa extracontractual, es doctrina constantemente reconocida por la jurispredencia del Tribunal Supremo. Así, en la sentencia de 14 de diciembre de 1894, concret·ndose a los artÌculos 1.101, 1.103 y 1.104, afirma que son de caráter general y aplicables a toda clase de obligaciones, no ofreciendo contradicción con las especiales de los artÌculos 1.902 y 1.903; la sentencia de 15 de enero de 1902, permite interpretar los artículos 1.902 y 1.903 por los 1.103 y 1.106, a los efectos de determinar los elementos que han de entrar en la indemnización. La misma doctrina se mantiene en la sentencia de 2 de diciembre de 1946, y en otras muchas que pudiÈmos aducir.”

b.

Rule under the New Civil Code.

The provisions of the New Civil Code on actual damages are consistent with the view expressed in Silva vs. Peralta. Article 2202 of the Civil Code provides that: “Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant.’’

In other words, the definition of proximate cause which includes the element of foresight is not consistent with the express provision of the New Civil Code. A person may be held liable whether the damage to the plaintiff may be unforeseen. Thus, the “directness” approach explained earlier, as well as the substantial factor test, may be applied in this jurisdiction. The language of the direct and natural consequence test had also appeared in jurisprudence. Thus, Taylor vs. Manila Electric Railroad and Light Co. (supra, at 202) merely requires as a third element of quasi-delict “the connection of cause and effect between the negligence and the damage.” Similarly, Vda. De Gregorio vs. Go Ching Bing referred to the “proximate, immediate and direct cause of the death of the plaintiffs.” However, the language of Article 2202 is somewhat misleading because it requires that the damage is the “natural and probable” consequence of the negligent act. Obviously, the terms used are not the same as that contemplated in the “natural and probable consequence” test of proximate cause in American jurisprudence because the latter involves foreeability. Reyes and Puno explained that “natural and probable” involves two things, that is, causality and adequacy.

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(p. 179). Causality means “that the damage would not have resulted without fault or negligence of the defendant” while adequacy means that the fault of the defendant would normally result in the damage suffered by the obligee. (ibid., citing Cammarota). It should likewise be pointed out in this connection that there are certain areas in law which are problematical in other jurisdiction but are, to a certain extent, clarified by the New Civil Code. For instance, plaintiff’s entitlement to an award of damages for emotional distress is no longer a question in this jurisdiction because there are specific provisions under the New Civil Code which specify cases when the defendant is liable therefrom. Another example is the provision which expressly provides for liability for lost profits or lucrum cessans. Liability for purely economic loss are disallowed in some jurisdictions because they are supposed to be unforeseeable. This is not to say that it is no longer necessary that causal connection is established in case those damages are being claimed. The New Civil Code, however, eliminates the problem in part by expressly providing that they are recoverable. Thus, the defendant can no longer use as a defense that emotional distress by nature has no causal connection with the negligent act or omission. The defendant cannot invoke the rule that that no recovery can be had for fright as ruled in some cases in the United States (See Mitchell v. Rochester Ry. Co., 151 NY 107 [1896]) because the Civil Code expressly provides moral damages in those cases. Consistent with the above-discussed rules, it is also settled that the defendant is liable for the injuries sustained by those who may be considered unforeseeable plaintiffs. The defendant is liable not only to the person to whom the negligent act was directed but to persons who may be directed but even to third persons. For example, the defendant may be held liable for damages to third persons otherwise called indirect damages. (Reyes and Puno, p. 166). In the same manner, third persons who are dependent for support upon the injured party may recover damages. (Manzanares vs. Moreta, 38 Phil. 821; Bernal vs. House, 54 Phil. 327; Article 2206, NCC). These third persons cannot be considered foreseeable plaintiffs at the time of the occurrence of the negligent act or omission. 5.

CAUSE AND CONDITION

Traditionally, Courts distinguish “cause” from “condition” maintaining that the defendant’s act or omission is not considered the cause if it merely created a “passive static condition.”

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In Phoenix Construction vs. Intermediate Appellate Court (supra at 11), the Supreme Court adopted the view that it is no longer practicable to distinguish between cause and condition. The Supreme Court adopted Prosser and Keeton’s view that: “Cause and condition. Many courts have sought to distinguish between the active “cause” of the harm and the existing “conditions” upon which that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendant is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before. The defendant who spills gasoline about the premises creates a “condition,” but the act may be culpable because of the danger of fire. When a spark ignites the gasoline, the condition has done quite as much to bring about the fire as the spark; and since that is the very risk which the defendant has created, the defendant will not escape responsibility. Even the lapse of a considerable time during which the “condition” remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who falls into it a month afterward. “Cause” and “condition” still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between “cause” and “condition” which is important, but the nature of the risk and the character of the intervening cause.”

The Supreme Court explained in Manila Electric Co. vs. Remoquillo, et al. (99 Phil. 117, 125 [1956], citing 45 C.J. 931-932) that a prior and remote cause cannot be made the basis of an action is such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, succesive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circ*mstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.

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a. Types of Dangerous Conditions.

There is no question, therefore, that even if the defendant had only created a condition, he may be held liable for damages if such condition resulted in harm to either person or property. One legal writer divided the most common examples of what he considers as dangerous conditions into three: 1) Those that inherently dangerous; 2) Those where a person places a thing which is not dangerous in itself, in a dangerous position; and 3) Those involving products and other things which are dangerous because they are defective. (Richard A. Epstein, Theory of Strict Liability, 2 Journal of Legal Studies 151 [1973]). The first class of dangerous conditions includes things which are inherently dangerous because they retain their potential energy in full, even if they are stored or handled with utmost care. The smallest application of force, or small change in conditions can release or otherwise set in motion large forces that can cause harm in the narrow sense of that term. The potential for danger remains great even if its probability is low. (ibid.). For example, one creates a dangerous condition if he buries radioactive waste or hazardous chemicals in his backyard. A small change in temperature or humidity result to injuries to other people. The second class of dangerous conditions includes cases where objects are placed in such a way that other people’s right of way is not recognized. For instance, in Phoenix Construction, a dangerous condition was created because a truck was parked askew in such a way that it partly blocks ongoing traffic. The second class also includes cases where objects are placed in an unstable position where the application of small force will permit the release of some greater force. Thus, if a person leaves a rock in an unstable position on top of a steep hill, there is a great possibility that somebody will be injured because it is bound to be pulled on the ground by the force of gravity. The third class includes defective construction of a building. The thing itself is not supposed to be dangerous but it was negligently or erroneously produced or constructed. Under the framework of determining the cause-in-fact, the dangerous conditions mentioned above are part of the causal set from which the candidate cause can be picked. CASE:

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RODRIGUEZA, et al. vs. THE MANILA RAILROAD CO. G.R. No. 15688, November 19, 1921 STREET, J.: This action was instituted jointly by Remigio Rodrigueza and three others in the Court of First Instance of the Province of Albay to recover a sum of money of the Manila Railroad Company as damages resulting from a fire kindled by sparks from a locomotive engine under the circ*mstances set out below. Upon hearing the cause upon the complaint, answer and an agreed statement of facts, the trial judge rendered judgment against the defendant company in favor of the plaintiffs and awarded to them the following sums respectively as damages, to wit: (1) to Remigio Rodrigueza, P3,000; (2) to Domingo Gonzaga, P400; (3) to Cristina Luna, P300; and (4) to Perfecta Losantas, P150; all with lawful interest from March 21, 1919. From this judgment the defendant appealed. The facts as appearing from the agreed statement, in relation with the complaint, are to the effect that the defendant Railroad Company operates a line through the district of Daraga in the municipality of Albay; that on January 29, 1918, as one of its trains passed over said line, a great quantity of sparks were emitted from the smokestack of the locomotive, and fire was thereby communicated to four houses nearby belonging to the four plaintiffs respectively, and the same were entirely consumed. All of these houses were of light construction with the exception of the house of Remigio Rodrigueza, which was of strong materials, though the roof was covered with nipa and cogon. The fire occurred immediately after the passage of the train, and a strong wind was blowing at the time. It does not appear either in the complaint or in the agreed statement whose house caught fire first, though it is stated in the appellant’s brief that the fire was first communicated to the house of Remigio Rodrigueza, from whence it spread to the others. In the fourth paragraph of the complaint — which is admitted to be true — it is alleged that the defendant Railroad Company was conspicuously negligent in relation to the origin of said fire, in the following respects, namely, first, in failing to exercise proper supervision over the employees in charge of the locomotive; secondly, in allowing the locomotive which emitted these sparks to be operated without having the smokestack protected by some device for arresting sparks; thirdly, in using in its locomotive upon this occasion Bataan coal, a fuel of known inferior quality which, upon combustion, produces sparks in great quantity. The sole ground upon which the defense is rested is that the house of Remigio Rodrigueza stood partly within the limits of the land owned by the defendant company, though exactly how far away from the company’s track does not appear. It further appears that, after the railroad track was laid, the company notified Rodrigueza to get his house off the land of the company and to remove it from its exposed position. Rodrigueza did not comply with

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this suggestion, though he promised to put an iron roof on his house, which he never did. Instead, he changed the materials of the main roof to nipa, leaving the kitchen and media-aguas covered with cogon. Upon this fact it is contended for the defense that there was contributory negligence on the part of Remigio Rodrigueza in having his house partly on the premises of the Railroad Company, and that for this reason the company is not liable. This position is in our opinion untenable for the reasons which we shall proceed to state. In the first place, it will be noted that the fact suggested as constituting a defense to this action could not in any view of the case operate as a bar to a recovery by the three plaintiffs other than Remigio Rodrigueza, even assuming that the fire was first communicated to his house; for said three plaintiffs are in nowise implicated in the act which supposedly constitutes the defense. In this connection it will be observed that the right of action of each of these plaintiffs is totally distinct from that of his co-plaintiffs so much so that each might have sued separately, and the defendant, if it had seen fit to do so, might in this case have demurred successfully to the complaint for misjoinder of parties plaintiff. The fact that the several rights of action of the different plaintiffs arose simultaneously out of one act of the defendant is not sufficient of itself to require, or even permit, the joinder of such parties as co-plaintiffs in a single action (30 Cyc., 114) if objection had been made thereto. Domingo Gonzaga, Cristina Luna, and Perfecta Losantas are therefore entitled to recover upon the admitted fact that this fire originated in the negligent acts of the defendant; and the circ*mstance that the fire may have been communicated to their houses through the house of Remigio Rodrigueza, instead of having been directly communicated from the locomotive, is immaterial. (See 38 Am. Dec., 64, 77; 1 11 R. C. L., 968-971; Kansas City, etc. Railroad Co. vs. Blaker, 64 L. R. A., 81; Pennsylvania Railroad Co. vs. Hope, 80 Pa. St., 373; 21 Am. Rep., 100.) With respect to the case of Remigio Rodrigueza it is to be inferred that his house stood upon this ground before the Railroad Company laid its line over this course; and at any rate there is no proof that this plaintiff had unlawfully intruded upon the railroad’s property in the act of building his house. What really occurred undoubtedly is that the company, upon making this extension, had acquired the land only, leaving the owner of the house free to remove it. Hence, he cannot be considered to have been a trespasser in the beginning. Rather, he was there at the sufferance of the defendant company, and so long as his house remained in this exposed position, he undoubtedly assumed the risk of any loss that might have resulted from fires occasioned by the defendant’s locomotives if operated and managed with ordinary care. But he cannot be held to have assumed the risk of any damage that might result from the unlawful negligent acts of the defendant. Nobody is bound to anticipate and defend himself against the possible negligence of another. Rather he has a right to assume that the other will use the care of the ordinarily prudent man. (Philadelphia & Reading Railroad Co. vs. Hendrickson, 80 Pa. St., 182; 21 Am. Rep., 97).

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In the situation now under consideration the proximate and only cause of the damage that occurred was the negligent act of the defendant in causing this fire. The circ*mstance that Remigio Rodrigueza’s house was partly on the property of the defendant company and therefore in dangerous proximity to passing locomotives was an antecedent condition that may in fact have made the disaster possible, but that circ*mstance cannot be imputed to him as contributory negligence destructive of his right of action, because, first, that condition was not created by himself; secondly, because his house remained on this ground by the toleration, and therefore with the consent of the Railroad Company; and thirdly, because even supposing the house to be improperly there, this fact would not justify the defendant in negligently destroying it. (Grand Trunk Railway of Canada vs. Richardson, 91 U.S., 454; 23 L. ed., 356; Norfolk etc. Ry. Co. vs. Perrow, 101 Va., 345, 350). The circ*mstance that the defendant company, upon planting its line near Remigio Rodrigueza’s house, had requested or directed him to remove it, did not convert his occupancy into a trespass, or impose upon him any additional responsibility over and above what the law itself imposes in such situation. In this connection it must be remembered that the company could at any time have removed said house in the exercise of the power of eminent domain, but it elected not to do so. Questions similar to that now before us have been under the consideration of American courts many times, and their decisions are found to be uniformly favorable to recovery where the property destroyed has been placed in whole or in part on the right of way of the railroad company with its express or implied consent. (L. R. Martin Timber Co. vs. Great Northern Railway Co., 123 Minn 423; Ann. Cas., 1915A, p. 496, note; Burroughs vs. Housa tonic R. R. Co., 16 Conn., 124; 38 Am. Dec., 64, 74; Southern Ry. Co. vs. Patterson, 105 Va., 6; 8 Ann. Cas., 44). And the case for the plaintiff is apparently stronger where the company constructs its line in proximity to a house already built and fails to condemn it and remove it from its right of way.

6.

EFFICIENT INTERVENING CAUSE A.

DEFINITION AND CONCEPT.

An efficient intervening cause is one that destroys the causal connection between the negligent act and injury and thereby negatives liability. (Morril vs. Morril, 60 ALR 102, 104 NJL 557). It is sometimes called, novus actus interviens. An intervening cause will be regarded as the proximate cause and the first cause as too remote, where the chain of events is so broken that they become independent and the result cannot be said to be the consequence of the primary cause. (65 CJS 1198). There is no efficient intervening cause if the force created by the negligent act or omission have either: (1) remained active itself or (2) created another force which remained active until it directly caused the result, or (3) created a new active risk of being

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acted upon by the active force that caused the result. (57 Am. Jur. 2d 507). An efficient intervening cause is equivalent to the pre-emptive cause referred to in the NESS test of Professor Wright. The test of the sufficiency of an intervening cause to defeat recovery for negligence is not to be found in the mere fact of its existence, but rather in its nature and manner in which it affects the continuity of operation of the primary cause or the connection between it and the injury. (J. Oneal Sandel vs. State of South Carolina, 13 ALR 1268, 115 SC 168, 104 SE 567 [1920]). Such intervening cause must be new and independent, not under the control of the original wrongdoer, or one which by the exercise of reasonable foresight and diligence, he should have anticipated and guarded against it. It must break the continuity of causal connection between the original negligent act or omission and the injury so that the former cannot be said to have been the efficient cause of the latter. (ibid.). For example, if A throws a hot object to B who in turn threw it to C, there is an intervening cause in the absence of which the C would not have been injured. Nevertheless, A is liable because he had wrongfully set in motion a force which continued to operate until it cause the injury. If A had thrown the object in a secluded place where it would not have cause injury and B had taken it up anew on its errand of mischief, there would have been a new cause, not dependent upon the first. Consequently, there is an efficient intervening cause in this last example. A cause is not an intervening cause if it is already in operation at the time the negligent act is committed. For instance, in Rodrigueza vs. Manila Electric Railroad, the house of the plaintiff was razed by fire because of the sparks emitted by one of the trains of defendant railroad company. The fire started in one house and wind caused fire to transfer to another house until it reached plaintiff’s property. The wind was not an intervening cause because it was already in operation at the time the negligent act of the defendant was performed. However, even if the wind was not yet operating, the same cannot be considered an efficient intervening cause because the wind did not break the chain of causation between the negligence of the defendant and the resulting damage to the plaintiff. The efficient intervening cause may be the negligence of the defendant. The plaintiff may be negligent but the defendant’s negligence pre-empted the effect of such negligence. The rule was applied in McKee vs. Intermediate Appellate Court (211 SCRA 517 [1992]). In the said case, the plaintiff, while driving in a highway, swerved his car to the opposite lane to avoid two children. As a result, the plaintiff’s car was bumped by a speeding truck going to the opposite

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direction. The Supreme Court explained: In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision.

Proximate cause has been defined as: “. . . ‘that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.” Applying the above definition, although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circ*mstances, the truck driver continued at full speed towards the car. The truck driver’s negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. The truck driver’s negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed

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negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents’ claim that there was an error in the translation by the investigating officer of the truck driver’s response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed; unless there is proof to the contrary, this presumption holds. In the instant case, private respondents’ claim is based on mere conjecture.”

B.

FORESEEABLE INTERVENING CAUSE.

The rule in this jurisdiction is to the effect that foreseeable intervening causes cannot be considered sufficient intervening causes. In Phoenix Construction vs. Court of Appeals (supra at 11), the Supreme Court cited the following observation of Prosser and Keeton: “Foreseeable Intervening Causes. If the intervening cause is one which in ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circ*mstances, the defendant may be negligent, among other reasons, because of failure to guard against it; or the defendant may be negligent only for that reason. Thus one who sets a fire may be required to foresee that an ordinary, usual and customary wind arising later will spread it beyond the defendant’s own property, and therefore to take precautions to prevent that event. The person who leaves the combustible or explosive material exposed in a public place may foresee the risk of fire from some independent source. . . . In all of these cases there is an intervening cause combining with the defendant’s conduct to produce the result, and in each case the defendant’s negligence consists in failure to protect the plaintiff against that very risk.”

Thus, in the above-discussed Rodrigueza case, even if the wind was not yet operating at the time the negligent act was committed, the same cannot be considered an efficient intervening cause because it was a foreseeable intervening cause. The wind may be considered one of those what Honore and Hart calls a “common recurrent feature of the environment.” If the intervening cause is a recurrent feature of the environment, they cannot be considered efficient because they are foreseeable.

a.

Medical Treatment as Intervening Cause.

Under this same principle, a tortfeasor is liable for the consequence of negligence, mistake, or lack of skill of a physician or surgeon

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whose treatment aggravated the original injury. The same is considered a normal and foreseeable risk. The rule is based on the reasoning that the additional harm is either: (1) a part of the original injury, (2) the natural and probable consequences of the tortfeasor’s original negligence or (3) the normal incidence of medical care necessitated by the tortfeasor’s original negligence. (22 Am. Jur. 2d 165). If at all, there will only be an efficient intervening cause where the original tortfeasor is not liable if the injured failed to exercise reasonable care in securing the services of a competent physician or surgeon. (22 Am. Jur. 2d 164). CASES: VDA. DE BATACLAN, et al. vs. MARIANO MEDINA 102 Phil. 181 [1957] MONTEMAYOR, J.: Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina Transportation, operated by its owner, defendant Mariano Medina, under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, seated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated on the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o’clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said that they could not get out of the bus. There, is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approached the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the

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bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire. That same day, the charred bodies of the four doomed passengers inside the bus were removed and duly identified, specially that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney’s fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as attorney’s fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter court endorsed the appeal to us because of the value involved in the claim in the complaint. xxx We agree with the trial court that the case involves a breach of contract of transportation for hire, the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We also agree with the trial court that there was negligence on the part of the defendant, through his agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses, including that of the defense, from the point where one of the front tires burst up to the canal where the bus overturned after zig-zagging, there was a distance of about 150 meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned turtle. There is no question that under the circ*mstances, the defendant carrier is liable. The only question is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: “. . . ‘that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ And more comprehensively, ‘the proximate legal cause is that acting first and producing

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the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.” It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to death, one might still contend that the proximate cause of his death was the fire and not the overturning of the vehicle. But in the present case and under the circ*mstances obtaining in the same, we do not hesitate to hold that the proximate cause of the death of Bataclan was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them; and coming as they did from a rural area where lanterns and flashlights were not available, they had to use a torch, the most handy and available; and what was more natural than that said rescuers should innocently approach the overturned vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with the torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through its driver and its conductor. According to the witnesses, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and detected even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763. xxx There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital, she was

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visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint, either failed to appear or were reluctant to testify. But the record of the case before us shows that several witnesses, passengers in that bus, willingly and unhesitatingly testified in court to the effect that the said driver was negligent. In the public interest, the prosecution of said erring driver should be pursued, this, not only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite. MERCEDES M. TEAGUE vs. ELENA FERNANDEZ 51 SCRA 181 [1973] MAKALINTAL, Actg., C.J.:

The facts are stated in the decision of the Court of Appeals as follows:

“The Realistic Institute, admittedly owned and operated by defendantappellee Mercedes M. Teague, was a vocational school for hair and beauty culture situated on the second floor of the Gil-Armi Building, a two-storey, semi-concrete edifice (Exhs. “C,” “C-1” to “C-5” and “4”) located at the corner of Quezon Boulevard and Soler Street, Quiapo, Manila. The said second floor was unpartitioned, had a total area of about 400 square meters, and although it had only one stairway, of about 1.50 meters in width, it had eight windows, each of which was provided with two fire-escape ladders (Exh. “4”), and the presence of each of said fire-exits was indicated on the wall (Exh. “5”). “At about four o’clock in the afternoon of October 24, 1955, a fire broke out in a store for surplus materials located about ten meters away from the institute. Soler Street lay between that store and the institute. Upon seeing the fire, some of the students in the Realistic Institute shouted ‘Fire! Fire!’ and thereafter, a panic ensued. Four instructresses and six assistant instructresses of the Institute were present and they, together with the registrar, tried to calm down the students, who numbered about 180 at the time, telling

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them not to be afraid because the Gil-Armi Building would not get burned as it is made of concrete, and that the fire was anyway, across the street. They told the students not to rush out but just to go down the stairway two by two, or to use the fire-escapes. Mrs. Justina Prieto, one of the instructresses, took to the microphone so as to convey to the students the above admonitions more effectively, and she even slapped three students in order to quiet them down. Miss Frino Meliton, the registrar, whose desk was near the stairway, stood up and tried with outstretched arms to stop the students from rushing and pushing their way to the stairs. The panic, however, could not be subdued and the students, with the exception of the few who made use of fire-escapes, kept on rushing and pushing their way through the stairs, thereby causing stampede therein. “Indeed, no part of the Gil-Armi Building caught fire. But, after the panic was over, four students, including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and several others injured on account of the stampede.

“x x x

x x x

x x x.”

The injuries sustained by Lourdes Fernandez consisted of lacerations in both eyes and on the upper lip, contused abrasions in different parts of the body, internal hemorrhage and fractures in the second and third right ribs. The cause of death, according to the autopsy report, was ‘Shock due to traumatic fractures of the ribs with perinephric hematoma and lacerations of the conjunctiva of both eyes.’ xxx [The Court ruled that there was violation of Section 491 of the Revised Ordinances of the City of Manila consisting in the fact that the second storey of the Gil-Armi building had only one stairway 1.5 meters wide, instead of two of at least 1.2 meters each, although at the time of the fire the owner of the building had a second stairway under construction. The Court ruled that there was negligence per se.] The next issue, indeed the basic one, raised by the petitioner is whether or not the failure to comply with the requirement of the ordinance was the proximate cause of the death of Lourdes Fernandez. The case of Villanueva Vda. de Bataclan, et al. vs. Medina, G.R. No. L-10126, October 22, 1957, is cited in support of the contention that such failure was not the proximate cause. It is there stated by this Court: “The proximate legal cause is that acting first and producing the injury, either immediately or by settling other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately affecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reason-

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able ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.” Having in view the decision just quoted, the petitioner relates the chain of events that resulted in the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of “Fire! Fire!”; (4) panic in the Institute; (5) stampede; and (6) injuries and death. As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot be the basis of liability since there intervened a number of independent causes which produced the injury complained of. A statement of the doctrine relied upon is found in Manila Electric Co. vs. Remoquillo, L-8328, May 18, 1956, wherein this Court, citing Corpus Juris, said: “A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circ*mstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause. (45 C.J., p. 931.)” According to the petitioner “the events of fire, panic and stampede were independent causes with no causal connection at all with the violation of the ordinance.” The weakness in the argument springs from a faulty juxtaposition of the events which formed a chain and resulted in the injury. It is true that the petitioner’s non-compliance with the ordinance in question was ahead of and prior to the other events in point of time, in the sense that it was coetaneous with its occupancy of the building. But the violation was a continuing one, since the ordinance was a measure of safety designed to prevent a specific situation which would pose a danger to the occupants of the building. That situation was undue overcrowding in case it should become necessary to evacuate the building, which, it could be reasonably foreseen, was bound to happen under emergency conditions if there was only one stairway available. It is true that in this particular case there would have been no overcrowding in the single stairway if there had not been a fire in the neighborhood which caused the students to panic and rush headlong for the stairs in order to go down. But it was precisely such contingencies or events that the authors of the ordinance had in mind, for under normal conditions one stairway would be adequate for the occupants of the building. Thus, as stated in 38 American Jurisprudence, page 841: ‘The general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the

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statute or ordinance was intended to prevent.’ To consider the violation of the ordinance as the proximate cause of the injury does not portray the situation in its true perspective; it would be more accurate to say that the overcrowding at the stairway was the proximate cause and that it was precisely what the ordinance intended to prevent by requiring that there be two stairways instead of only one. Under the doctrine of the cases cited by the respondents, the principle of proximate cause applies to such violation. FILOMENO URBANO vs. HON. INTERMEDIATE APPELLATE COURT G.R. No. 72964, January 7, 1988 This is a petition to review the decision of the then Intermediate Appellate Court which affirmed the decision of the then Circuit Criminal Court of Dagupan City finding petitioner Filomeno Urbano guilty beyond reasonable doubt of the crime of homicide.

The records disclose the following facts of the case.

At about 8:00 o’clock in the morning of October 23, 1980, petitioner Filomeno Urbano went to his ricefield at Barangay Anonang, San Fabian, Pangasinan located at about 100 meters from the tobacco seedbed of Marcelo Javier. He found the place where he stored his palay flooded with water coming from the irrigation canal nearby which had overflowed. Urbano went to the elevated portion of the canal to see what happened and there he saw Marcelo Javier and Emilio Erfe cutting grass. He asked them who was responsible for the opening of the irrigation canal and Javier admitted that he was the one. Urbano then got angry and demanded that Javier pay for his soaked palay. A quarrel between them ensued. Urbano unsheathed his bolo (about 2 feet long, including the handle, by 2 inches wide) and hacked Javier hitting him on the right palm of his hand, which was used in parrying the bolo hack. Javier who was then unarmed ran away from Urbano but was overtaken by Urbano who hacked him again hitting Javier on the left leg with the back portion of said bolo, causing a swelling on said leg. When Urbano tried to hack and inflict further injury, his daughter embraced and prevented him from hacking Javier. Immediately thereafter, Antonio Erfe, Emilio Erfe, and Felipe Erfe brought Javier to his house about 50 meters away from where the incident happened. Emilio then went to the house of Barangay Captain Menardo Soliven but not finding him there, Emilio looked for barrio councilman Felipe Solis instead. Upon the advice of Solis, the Erfes together with Javier went to the police station of San Fabian to report the incident. As suggested by Corporal Torio, Javier was brought to a physician. The group went to Dr. Guillermo Padilla, rural health physician of San Fabian, who did not attend to Javier but instead suggested that they go to Dr. Mario Meneses because Padilla had no available medicine.

After Javier was treated by Dr. Meneses, he and his companions re-

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turned to Dr. Guillermo Padilla who conducted a medico-legal examination. Dr. Padilla issued a medico-legal certificate (Exhibit “C” dated September 28, 1981) which reads: “TO WHOM IT MAY CONCERN: “This is to certify that I have examined the wound of Marcelo Javier, 20 years of age, married, residing at Barangay Anonang, San Fabian, Pangasinan on October 23, 1980 and found the following: “1-Incised wound 2 inches in length at the upper portion of the lesser palmar prominence, right. “As to my observation the incapacitation is from (7-9) days period. This would was presented to me only for medico-legal examination, as it was already treated by the other doctor. (p. 88, Original Records) Upon the intercession of Councilman Solis, Urbano and Javier agreed to settle their differences. Urbano promised to pay P700.00 for the medical expenses of Javier. Hence, on October 27, 1980, the two accompanied by Solis appeared before the San Fabian Police to formalize their amicable settlement. Patrolman Torio recorded the event in the police blotter (Exhibit “A”), to wit:

x x x

x x x

xxx

“Entry Nr 599/27 Oct ’80/1030H/ Re entry Nr 592 on page 257 both parties appeared before this Station accompanied by brgy councilman Felipe Solis and settled their case amicably, for they are neighbors and close relatives to each other. Marcelo Javier accepted and granted forgiveness to Filomeno Urbano who shoulder (sic) all the expenses in his medical treatment, and promising to him and to this Office that this will never be repeated anymore and not to harbour any grudge against each other.” (p. 87, Original Records) Urbano advanced P400.00 to Javier at the police station. On November 3, 1980, the additional P300.00 was given to Javier at Urbano’s house in the presence of barangay captain Soliven. At about 1:30 a.m. on November 14, 1980, Javier was rushed to the Nazareth General Hospital in a very serious condition. When admitted to the hospital, Javier had lockjaw and was having convulsions. Dr. Edmundo Exconde who personally attended to Javier found that the latter’s serious condition was caused by tetanus toxin. He noticed the presence of a healing wound in Javier’s palm which could have been infected by tetanus. On November 15, 1980 at exactly 4:18 p.m., Javier died in the hospital. The medical findings of Dr. Exconde are as follows: “Date Diagnosis 11-14-80

ADMITTED due to trismus

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adm. at

DX: TETANUS

1:30 AM

Still having frequent muscle spasm. With difficulty opening his mouth.

#35, 421

Restless at times. Febrile

11-15-80

Referred. Novaldin 1 amp. inj. IM. Sudden cessation of respiration and HR after muscular spasm. O2 inhalation administered. Ambo bag resuscitation and cardiac massage done but to no avail. Pronounced dead by Dra. Cabugao at 4:18 P.M. PMC done and cadaver brought home by relatives.” (p. 100, Original Records)

In an information dated April 10, 1981, Filomeno Urbano was charged with the crime of homicide before the then Circuit Criminal Court of Dagupan City, Third Judicial District. Upon arraignment, Urbano pleaded “not guilty.” After trial, the trial court found Urbano guilty as charged. He was sentenced to suffer an indeterminate prison term of from TWELVE (12) YEARS of prision mayor, as minimum to SEVENTEEN (17) years, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal, as maximum, together with the accessories of the law, to indemnify the heirs of the victim, Marcelo Javier, in the amount of P12,000.00 without subsidiary imprisonment in case of insolvency, and to pay the costs. He was ordered confined at the New Bilibid Prison, in Muntinlupa, Rizal upon finality of the decision, in view of the nature of his penalty. The then Intermediate Appellate Court affirmed the conviction of Urbano on appeal but raised the award of indemnity to the heirs of the deceased to P30,000.00 with costs against the appellant. The appellant filed a motion for reconsideration and/or new trial. The motion for new trial was based on an affidavit of Barangay Captain Menardo Soliven (Annex “A”) which states: “That in 1980, I was the barrio captain of Barrio Anonang, San Fabian, Pangasinan, and up to the present having been re-elected to such position in the last barangay elections on May 17, 1982; “That sometime in the first week of November, 1980, there was a typhoon that swept Pangasinan and other places of Central Luzon including San Fabian, a town of said province; “That during the typhoon, the sluice or control gates of the Buedirrigation dam which irrigates the ricefields of San Fabian were closed and/or controlled so much so that water and its flow to the canals and ditches were regulated and reduced; “That due to the locking of the sluice or control gates of the dam leading to the canals and ditches which will bring water to the ricefields, the water in said canals and ditches become shallow which was suitable for catching mudfishes;

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“That after the storm, I conducted a personal survey in the area affected, with my secretary Perfecto Jaravata; “That on November 5, 1980, while I was conducting survey, I saw the late Marcelo Javier catching fish in the shallow irrigation canals with some companions; “That few days thereafter, or on November 15, 1980, I came to know that said Marcelo Javier died of tetanus.” (p.\ 33, Rollo)

The motion was denied. Hence, this petition.

In a resolution dated July 16, 1986, we gave due course to the petition.

The case involves the application of Article 4 of the Revised Penal Code which provides that “Criminal liability shall be incurred: (1) By any person committing a felony (delito) although the wrongful act done be different from that which he intended . . .” Pursuant to this provision “an accused is criminally responsible for acts committed by him in violation of law and for all the natural and logical consequences resulting therefrom.” (People vs. Cardenas, 56 SCRA 631). The record is clear that Marcelo Javier was hacked by the petitioner who used a bolo as a result of which Javier suffered a 2-inch incised wound on his right palm; that on November 14, 1981 which was the 22nd day after the incident, Javier was rushed to the hospital in a very serious condition and that on the following day, November 15, 1981, he died from tetanus. Under these circ*mstances, the lower courts ruled that Javier’s death was the natural and logical consequence of Urbano’s unlawful act. Hence, he was declared responsible for Javier’s death. Thus, the appellate court said: “The claim of appellant that there was an efficient cause which supervened from the time the deceased was wounded to the time of his death, which covers a period of 23 days does not deserve serious consideration. True, that the deceased did not die right away from his wound, but the cause of his death was due to said wound which was inflicted by the appellant. Said wound which was in the process of healing got infected with tetanus which ultimately caused his death. “Dr. Edmundo Exconde of the Nazareth General Hospital testified that the victim suffered lockjaw because of the infection of the wound with tetanus. And there is no other way by which he could be infected with tetanus except through the wound in his palm. (tsn., p. 78, Oct. 5, 1981). Consequently, the proximate cause of the victim’s death was the wound which got infected with tetanus. And the settled rule in this jurisdiction is that an accused is liable for all the consequences of his unlawful act. (Article 4, par. 1, R.P.C.; People vs. Red, CA 43 O.G. 5072; People vs. Cornel, 78 Phil. 418) “Appellant’s allegation that the proximate cause of the victim’s death was due to his own negligence in going back to work without his wound being properly healed, and lately, that he went to catch fish in dirty irrigation ca-

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nals in the first week of November, 1980, is an afterthought, and a desperate attempt by appellant to wiggle out of the predicament he found himself in. If the wound had not yet healed, it is impossible to conceive that the deceased would be reckless enough to work with a disabled hand.” (pp. 20-21, Rollo). The petitioner reiterates his position that the proximate cause of the death of Marcelo Javier was due to his own negligence, that Dr. Mario Meneses found no tetanus in the injury, and that Javier got infected with tetanus when after two weeks he returned to his farm and tended his tobacco plants with his bare hands exposing the wound to harmful elements like tetanus germs. The evidence on record does not clearly show that the wound inflicted by Urbano was infected with tetanus at the time of the infliction of the wound. The evidence merely confirms that the wound, which was already healing at the time Javier suffered the symptoms of the fatal ailment, somehow got infected with tetanus. However, as to when the wound was infected is not clear from the record. In Vda. de Bataclan, et al. vs. Medina (102 Phil. 1181), we adopted the following definition of proximate cause:

x x x

x x x

xxx

“. . . A satisfactory definition of proximate cause is found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief. It is as follows: “. . . ‘that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ And more comprehensively, ‘the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circ*mstances that the person responsible for the first event should, as an ordinarily prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.’” (at pp. 185-186) The issue, therefore, hinges on whether or not there was an efficient intervening cause from the time Javier was wounded until his death which would exculpate Urbano from any liability for Javier’s death.

We look into the nature of tetanus —

“The incubation period of tetanus, i.e., the time between injury and the appearance of unmistakable symptoms, ranges from 2 to 56 days. However, over 80 percent of patients become symptomatic within 14 days. A short incubation period indicates severe disease, and when symptoms occur within

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2 or 3 days of injury, the mortality rate approaches 100 percent. “Nonspecific premonitory symptoms such as restlessness, irritability, and headache are encountered occasionally, but the commonest presenting complaints are pain and stiffness in the jaw, abdomen, or back and difficulty swallowing. As the disease progresses, stiffness gives way to rigidity, and patients often complain of difficulty opening their mouths. In fact, trismus is the commonest manifestation of tetanus and is responsible for the familiar descriptive name of lockjaw. As more muscles are involved, rigidity becomes generalized, and sustained contractions called risus sardonicus. The intensity and sequence of muscle involvement is quite variable. In a small proportion of patients, only local signs and symptoms develop in the region of the injury. In the vast majority, however, most muscles are involved to some degree, and the signs and symptoms encountered depend upon the major muscle groups affected. Reflex spasm usually occur within 24 to 72 hours of the first symptoms, on interval referred to as the onset time. As in the case of the incubation period, a short onset time is associated with a poor prognosis. Spasms are caused by sudden intensification of afferent stimuli arising in the periphery, which increases rigidity and causes simultaneous and excessive contraction of muscles and their antagonists. Spasms may be both painful and dangerous. As the disease progresses, minimal or inapparent stimuli produce more intense and longer-lasting spasms with increasing frequency. Respiration may be impaired by laryngospasm or tonic contraction of respiratory muscles which prevent adequate ventilation. Hypoxia may then lead to irreversible central nervous system damage and death. Mild tetanus is characterized by an incubation period of at least 14 days and an onset time of more than 6 days. Trismus is usually present, but dysphagia is absent and generalized spasms are brief and mild. Moderately severe tetanus has a somewhat shorter incubation period and onset time; trismus is marked, dysphagia and generalized rigidity are present, but ventilation remains adequate even during spasms. The criteria for severe tetanus include a short incubation time, and an onset time of 72 hrs., or less, severe trismus, dysphagia and rigidity and frequent prolonged, generalized convulsive spasms. (Harrison’s Principle of Internal Medicine, 1983 Edition, pp. 1004-1005; Emphasis supplied). Therefore, medically speaking, the reaction to tetanus found inside a man’s body depends on the incubation period of the disease. In the case at bar, Javier suffered a 2-inch incised wound on his right palm when he parried the bolo which Urbano used in hacking him. This incident took place on October 23, 1980. After 22 days, or on November 14, 1980, he suffered the symptoms of tetanus, like lockjaw and muscle spasms. The following day, November 15, 1980, he died. If, therefore, the wound of Javier inflicted by the appellant was already infected by tetanus germs at the time, it is more medically probable that

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Javier should have been infected with only a mild cause of tetanus because the symptoms of tetanus appeared on the 22nd day after the hacking incident or more than 14 days after the infliction of the wound. Therefore, the onset time should have seen more than six days. Javier, however, died on the second day from the onset time. The more credible conclusion is that at the time Javier’s wound was inflicted by the appellant, the severe form of tetanus that killed him was not yet present. Consequently, Javier’s wound could have been infected with tetanus after the hacking incident. Considering the circ*mstance surrounding Javier’s death, his wound could have been infected by tetanus 2 or 3 or a few but not 20 to 22 days before he died. The rule is that the death of the victim must be the direct, natural, and logical consequence of the wounds inflicted upon him by the accused. (People vs. Cardenas, supra). And since we are dealing with a criminal conviction, the proof that the accused caused the victim’s death must convince a rational mind beyond reasonable doubt. The medical findings, however, lead us to a distinct possibility that the infection of the wound by tetanus was an efficient intervening cause later or between the time Javier was wounded to the time of his death. The infection was, therefore, distinct and foreign to the crime. (People vs. Rellin, 77 Phil. 1038). Doubts are present. There is a likelihood that the wound was but the remote cause and its subsequent infection, for failure to take necessary precautions, with tetanus may have been the proximate cause of Javier’s death with which the petitioner had nothing to do. As we ruled in Manila Electric Co. vs. Remoquillo, et al. (99 Phil. 118): “‘A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the circ*mstances, which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.’ (45 C.J., pp. 931-932).” (at p. 125) It strains the judicial mind to allow a clear aggressor to go scot free of criminal liability. At the very least, the records show he is guilty of inflicting slight physical injuries. However, the petitioner’s criminal liability in this respect was wiped out by the victim’s own act. After the hacking incident, Urbano and Javier used the facilities of barangay mediators to effect a compromise agreement where Javier forgave Urbano while Urbano defrayed the medical expenses of Javier. This settlement of minor offenses is allowed under the express provisions of Presidential Decree No. 1508, Section 2(3). (See also People vs. Caruncho, 127 SCRA 16) [Interestingly, the Supreme Court limited the force of its discussion to the

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criminal liability. The Court imposed civil liability under the well-settled doctrine that a person, while not criminally liable, may still be civilly liable. (citing People vs. Rogelio Ligon y Tria, et al., G.R. No. 74041, July 29, 1987)]

C.

UNFORESEEN AND UNEXPECTED ACT OR CAUSE.

In Africa vs. Caltex, the defendant argued that the fire in the gasoline station which occurred while gasoline was being unloaded was caused through the acts of a stranger who, without authority, or permission of answering defendant, passed through the gasoline station and negligently threw a lighted match in the premises. The Supreme Court ruled that no evidence on this point was adduced, but assuming the allegation to be true it does not extenuate defendant’s negligence. The Supreme Court adopted the view that “if the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from liability. Stated in another way, the intervention of an unforeseen and unexpected cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates with the independent cause in the resulting injury.’’ (citing Restatement of the Law of Torts, vol. 2, p. 1184, No. 439 and MacAfee, et al. vs. Traver’s Gas Corp., et al., 153 S.W. 2nd 442.). Hence, the defendant is liable even if it combines with another independent or intervening cause and even if the injury would not have occurred without such other cause. (Lachica vs. Gayoso, CA-G.R. No. 2083-R, January 9, 1950). An unforseen and unexpected act of a third person may not therefore be considered efficient intervening cause if it is duplicative in nature or if it merely aggravated the injury that resulted because of a prior cause. The same conclusion can be reached if the third person’s act is part of the causal set, together with defendant’s negligence, that operated to cause the injury. 7.

CONTRIBUTORY NEGLIGENCE

One of the perplexing problems relating to proximate cause is the concept of contributory negligence. As already mentioned in the preceding Chapter, contributory negligence is defined as conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is

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required to conform for his own protection. (Valenzuela vs. Court of Appeals). There are authorities for the view that contributory negligence merely contributes to the injury. In this section, we will endeavor to examine the different alternative situations where the plaintiff was likewise negligent in order determine the meaning of contributory negligence.

A.

PLAINTIFF’S NEGLIGENCE IS THE CAUSE.

First, there is no question that the negligence of the plaintiff is not contributory negligence if it is the only cause, that is, it is necessary and sufficient to produce the result. In this situation defendant’s act or omission is neither necessary nor sufficient to cause damage or injury. This situation may include the cases when only the plaintiff was negligent while the defendant is not negligent or defendant’s negligence is not part of the causal set or the causal chain. Another situation included in the first group are cases when plaintiff’s negligence is pre-emptive in nature.

B.

COMPOUND CAUSES.

Secondly, there might be compound causes and plaintiff’s negligence may have duplicative effect, that is, it is sufficient to bring about the effect but his negligence occurs simultaneously with that of the defendant. The latter’s negligence is equally sufficient but not necessary for the effect because the damage would still have resulted due to the negligence of the plaintiff. It is submitted that in these cases, no recovery can be had. The plaintiff’s negligence is not merely contributory because it is a concurring proximate cause.

C.

PART OF THE SAME CAUSAL SET.

The third possibility is when the plaintiff’s negligence, together with defendant’s negligence, is part of the same causal set. Plaintiff’s negligence is not sufficient to cause the injury while defendant’s negligence is also not equally sufficient. The effect would result only if both are present together with normal background conditions. The effect would not have resulted without the concurrence of all of them. It is believed that the plaintiff’s negligence can still be considered merely contributory under the circ*mstances mentioned in the preceding paragraph. In fact, almost all (if not all) the cases cited earlier are examples of cases where the negligence of the plaintiff cooperated with the negligence of the defendant in order to bring about the damage or injury. (See Rakes vs. AG&P; Phoenix Construction Inc. vs. Intermediate Appellate Court; Bank of Philippine Islands vs.

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Court of Appeals; Philippine Bank of Commerce vs. Court of Appeals; LBC Air Cargo, Inc. vs. Court of Appeals). It is submitted that the determination of proximate cause in these cases is only a matter of degree of participation. In this situation, it is believed that apportionment should be made and each of the candidate causes given a percentage of participation. Obviously, it would be impossible to formulate a mathematical formula to determine with exactness the extent of mitigation brought about by the contributory negligence of the defendant. The courts are therefore given the discretion to determine the percentage of mitigation that will be imposed against the plaintiff. As already pointed out in the preceding chapter, the Supreme Court reduced the liability of the defendant up to fifty percent (50%). Under a pure comparative negligence regime, the apportionment to both parties may result in the reduction of the liability of the defendant to more than half. It is believed, however, that the reduction cannot be more than fifty percent (50%) in this jurisdiction because reduction by more than fifty percent (50%) is no longer consistent with a finding that the defendant’s negligence was the proximate cause of the damage or injury. It should be noted however, that there is authority for the view that “degrees of causation may be impossible of rational assessment.” (Winfield, p. 244). One legal writer commented that “to attempt to apportion damages by reference to degree of participation in the chain of causation is a hopeless enterprise, for it has no necessary connection with anything that would appeal to the ordinary person as being just and equitable.” (Granville Williams, “The Two Negligent Servants” [1954] 17 M.L.R. 66, 69). Nevertheless, it is believed that the solution is not to disregard degrees of participation in assessing the respective shares of the parties. The observation in Winfield & Jolowicz on Torts in this connection is worth quoting: “The result is, therefore, that there is no single principle for the apportionment of damages in cases of contributory negligence, and certainly no mathematical approach is possible. No doubt the extent of the plaintiff’s lack of care for his own safety must be a major factor in all cases, but the court is directed by the statute to do what is ‘just and equitable’. The matter is thus one for the discretion of the court, and, though the discretion must be exercised judicially, it is both unnecessary and undesirable that the exercise of the discretion be fettered by rigid rules requiring the court to take some aspects of the given case into account and to

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reject others. However, if the court comes to the conclusion that the actions of both parties contributed to the damage it has power neither to disregard the plaintiff’s fault not to hold the plaintiff to guilty of ‘100% contributory negligence.’” (pp. 245 to 246)

D.

DEFENDANT’S NEGLIGENCE IS THE ONLY CAUSE.

Lastly, the defendant’s negligence may be sufficient and necessary to cause the damage and plaintiff’s act or omission is neither necessary nor sufficient. Damage to the plaintiff was solely the result of the defendant’s negligence. However, the plaintiff’s negligence may have increased or aggravated the resulting damage or injury. In this particular case, the liability of the defendant should also be mitigated under the contributory negligence rule or under the doctrine of avoidable consequences, as the case may be. 8.

LAST CLEAR CHANCE A.

ALTERNATIVE VIEWS.

a.

Prevailing View.

The doctrine of the last clear chance was introduced in his jurisdiction about a hundred years ago in Picart vs. Smith (supra). The Supreme Court ruled therein that even if the plaintiff was guilty of antecedent negligence, the defendant is still liable because he had the last clear chance of avoiding injury. The law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. The doctrine has been reiterated, or at least discussed, in the number of cases leading us to conclude that the weight of authority indicates that the doctrine is applicable in this jurisdiction. (Picart vs. Smith, supra; Del Prado vs. Manila Electric Co., 52 Phil. 900 [1929]; Ong vs. Metropolitan Waterworks, 104 Phil. 307 [1958]; Anuran, et al. vs. Buno, et al., 123 Phil. 1073 [1966]; Glan People’s Lumber and Hardware, et al. vs. Intermediate Appellate Court, May 18, 1989; Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384 [1989]; Philippine Rabbit Bus Lines, Inc. vs. Intermediate Appellate Court, August 30, 1990; Bustamante vs. Court of Appeals, 193 SCRA 603 [1991]; McKee vs. Intermediate Appellate Court, 211 SCRA 517 [1992]; Bank of Philippine Islands vs. Court of Appeals, 216 SCRA 51 [1992]; LBC Air Cargo, Inc. vs. Court of Appeals, 241 SCRA 619 [1995]; Philippine Bank of Commerce vs. Court of Appeals, 269 SCRA

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695 [1997]). The doctrine of last clear chance was explained in one case in this wise: “The respondent court adopted the doctrine of “last clear chance.” The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiffs negligence. In other words, the doctrine of last clear chance means that even though a person’s own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p. 165). The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).” (Bustamante vs. Court of Appeals, supra).

b.

Minority View.

However, Justice Feliciano expressed reservations over the applicability of the doctrine in this jurisdiction in Phoenix Construction, Inc., et al. vs. The Intermediate Appellate Court, et al. (supra, at p. 11), where the Supreme Court observed that: “Petitioners also ask us to apply what they refer to as the “last clear chance” doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the “last clear chance” of avoiding the accident and hence his injuries, and that Dionisio having failed to take that “last clear chance” must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule — that of contributory negligence.

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The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff’s negligence was relatively minor as compared with the wrongful act or omission of the defendant. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. Is there perhaps a general concept of “last clear chance” that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff’s or the defendant’s — was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like “last” or “intervening” or “immediate.” The relative location in the continuum of time of the plaintiff’s and the defendant’s negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver’s own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the foreseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners’ proposition must tend to weaken the very bonds of society.”

It is believed that the opinion expressed in Phoenix Construction, Inc. is the correct rule. There is no logical reason why the doctrine of last clear chance should still be relied upon in determining proximate cause in the light of the prevailing concept on proximate case in this jurisdiction.

c.

Third View.

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It should be noted, however, that not all jurisdictions in the United States which subscribe to the doctrine of comparative negligence reject the doctrine of the last clear chance. In some states in the United States, the two doctrines are not considered inconsistent in any way. (57 Am. Jur. 2d 866). One ground stated in support of this position is that there can be no conflict between the doctrines if the last clear chance doctrine is viewed as a rule or phase of proximate cause. (ibid., p. 867). It has also been observed, however, that the doctrine is no longer applicable if the force created by the plaintiff’s negligence continues until the happening of the injurious event. In such a case, the comparative negligence rule applies. (ibid.).

B.

CASES WHEN THE DOCTRINE WAS APPLIED.

Examination of the cases where the Supreme Court applied the doctrine of last clear chance reveals that the doctrine is being applied for the purpose of determining the proximate cause of the accident. The Supreme Court do not relate the doctrine of the last clear chance to the rule on contributory negligence or comparative negligence. In fact, in most cases, the Supreme Court used the doctrine in determining if the negligence of the defendant was the proximate cause and that of the plaintiff as contributory. For example, in Picart vs. Smith, the plaintiff was riding a pony on a bridge. Seeing an automobile ahead he improperly pulled his horse over to the railing on the right. The driver of the automobile, however guided his car toward the plaintiff without diminution of speed until he was only few feet away. He then turned to the right but passed so closely to the horse that the latter being frightened, jumped around and was killed by the passing car. Plaintiff Picart was thrown off his horse and suffered contusions which required several days of medical attention. He sued the defendant Smith for the value of his animal, medical expenses and damage to his apparel. He obtained judgment from the Supreme Court which, while finding that there was negligence on the part of both parties, held that of the defendant was the immediate and determining cause of the accident and that of the plaintiff, contributory because it was the more remote factor. The Supreme Court observed that: “It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and

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directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circ*mstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.” (emphasis supplied.).

In Philippine Bank of Commerce vs. Court of Appeals (supra), the Supreme Court applied the doctrine by ruling that even assuming that the plaintiff “was negligent in entrusting cash to a dishonest employee, thus, providing the latter with the opportunity to defraud the company, as advanced by the (defendant), yet it cannot be denied that the (defendant) bank, thru its teller, had the last clear opportunity to avert the injury incurred by its client, simply by faithfully observing their self-imposed validation procedure. The plaintiff’s employee was able to get the plaintiff’s money by using two deposit slips while depositing money with the defendant bank. The original slip contains the name of the employee’s husband as depositor and his current account number. On the duplicate copy was written the account number of her husband but the name of the account holder was left blank. The defendant’s teller would validate the two slip retaining only the original. After validation the plaintiff’s employee filled up the name of the plaintiff in the blank portion of the duplicate and changed the name of her husband to that of the plaintiff. The scheme went on for one year with the teller accepting the explanation of the employee that the duplicate was only for her personal record and that she will fill it up later. CASE: GLAN PEOPLE’S LUMBER AND HARDWARE, et al. vs. INTERMEDIATE APPELLATE COURT, et al. G.R. No. 70493, May 18, 1989 NARVASA, J.: There is a two-fold message in this judgment that bears stating at the outset. The first, an obvious one, is that it is the objective facts established by proofs presented in a controversy that determine the verdict, not the plight of the persons involved, no matter how deserving of sympathy and commiseration because, for example, an accident of which they are the innocent victims has brought them to reduced circ*mstances or otherwise tragically altered their lives. The second is that the doctrine laid done many, many years ago

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in Picart vs. Smith, continues to be good law to this day. The facts giving rise to the controversy at bar are tersely and quite accurately recounted by the Trial Court as follows: “Engineer Orlando T. Calibo, Agripino Roranes, and Maximo Patos were on the jeep owned by the Bacnotan Consolidated Industries, Inc., with Calibo at the wheel, as it approached from the South Lizada Bridge going towards the direction of Davao City at about 1:45 in the afternoon of July 4, 1979. At about that time, the cargo truck, loaded with cement bags, GI sheets, plywood, driven by defendant Paul Zacarias y Infante, coming from the opposite direction of Davao City and bound for Glan, South Cotabato, had just crossed said bridge. At about 59 yards after crossing the bridge, the cargo truck and the jeep collided as a consequence of which Engineer Calibo died while Roranes and Patos sustained physical injuries. Zacarias was unhurt. As a result of the impact, the left side of the truck wag slightly damaged while the left side of the jeep, including its fender and hood, was extensively damaged. After the impact, the jeep fell and rested on its right side on the asphalted road a few meters to the rear of the truck, while the truck stopped on its wheels on the road. On November 27, 1979, the instant case for damages was filed by the surviving spouse and children of the late Engineer Calibo who are residents of Tagbilaran City against the driver and owners of the cargo truck. For failure to file its answer to the third party complaint, third party defendant, which insured the cargo truck involved, was declared in default.” The case filed by the heirs of Engineer Calibo — his widow and minor children, private respondents herein — was docketed as Civil Case No. 3283 of the Court of First Instance of Bohol. Named defendants in the complaint were “Felix S. Agad, George Lim and Felix Lim . . . (who) appear to be the co-owners of the Glan People’s Lumber and Hardware . . . (and) Paul Zacarias y Infante.” The defendants’ answer however alleged that the lumber and hardware business was exclusively owned by George Y. Lim, this being evidenced by the Certificate of Registration issued by the Bureau of Domestic Trade; Fabio S. Agad was not a co-owner thereof but “merely employed by . . . George Y. Lim as bookkeeper”; and Felix Lim had no connection whatever with said business, “he being a child only eight (8) years of age.” “After (trial, and) a careful evaluation of the evidence, both testimonial and documentary,” the Court reached the conclusion “that the plaintiffs failed to establish by preponderance of evidence the negligence, and thus the liability, of the defendants.” Accordingly, the Court dismissed the complaint (and defendants’ counterclaim) “for insufficiency of evidence.” Likewise dismissed was third-party complaint presented by the defendants against the insurer of the truck. The circ*mstances leading to the Court’s conclusion just mentioned, are detailed in the Court’s decision, as follows: 1.

Moments before its collision with the truck being operated by Zacarias, the jeep of the deceased Calibo was “zigzagging.”

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2.

Unlike Zacarias who readily submitted himself to investigation by the police, Calibo’s companions, Roanes (an accountant), and Patos, who suffered injuries on account of the collision, refused to be so investigated or give statements to the police officers. This, plus Roranes’ waiver of the right to institute criminal proceedings against Zacarias, and the fact that indeed no criminal case was ever instituted in Court against Zacarias, were “telling indications that they did not attribute the happening to defendant Zacarias’ negligence or fault.”

3.

Roranes’ testimony, given in plaintiffs’ behalf, was “not as clear and detailed as that of . . . Zacarias,” and was “uncertain and even contradicted by the physical facts and the police investigators Dimaano and Esparcia.”

4.

That there were skid marks left by the truck’s tires at the scene, and none by the jeep, demonstrates that the driver of the truck had applied the brakes and the jeep’s driver had not; and that the jeep had on impact fallen on its right side is indication that it was running at high speed. Under the circ*mstances, according to the Court, given “the curvature of the road and the descending grade of the jeep’s lane, it was negligence on the part of the driver of the jeep, Engr. Calibo, for not reducing his speed upon sight of the truck and failing to apply the brakes as he got within collision range with the truck.”

5.

Even if it be considered that there was some antecedent negligence on the part of Zacarias shortly before the collision, in that he had caused his truck to run some 25 centimeters to the left of the center of the road, Engr. Calibo had the last clear chance of avoiding the accident because he still had ample room in his own lane to steer clear of the truck, or he could simply have braked to a full stop.

The Court of Appeals saw things differently. It rendered judgment on the plaintiffs’ appeal, reversing the decision of the Trial Court. It found Zacarias to be negligent on the basis of the following circ*mstances, to wit: 1)

“the truck driven by defendant Zacarias occupied the lane of the jeep when the collision occurred,” and although Zacarias saw the jeep from a distance of about 150 meters, he “did not drive his truck back to his lane in order to avoid collision with the oncoming jeep . . . ;” what is worse, “the truck driver suddenly applied his brakes even as he knew that he was still within the lane of the jeep;” had both vehicles stayed in their respective lanes, the collision would never have occurred, they would have passed “alongside each other safely;”

2)

Zacarias had no license at the time; what he handed to Pfc. Esparcia, on the latter’s demand, was the “driver’s license of his co-driver Leonardo Baricuatro;”

3)

the waiver of the right to file criminal charges against Zacarias should not be taken against “plaintiffs” Roranes and Patos who had the right, under the law, to opt merely to bring a civil suit.

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The Appellate Court opined that Zacarias’ negligence “gave rise to the presumption of negligence on the part of his employer, and their liability is both primary and solidary.” It therefore ordered “the defendants jointly and solidarily to indemnify the plaintiffs the following amounts: (1)

P30,000.00 for the death of Orlando Calibo;

(2)

P378,000.00 for the loss of earning capacity of the deceased;

(3)

P15,000.00 for attorney’s fees;

(4)

Cost of suit.”

The defendants George Lim, Felix Lim, Fabio S. Agad and Paul Zacarias have appealed to this Court on certiorari and pray for a reversal of the judgment of the Intermediate Appellate Court which, it is claimed, ignored or ran counter to the established facts. A review of the record confirms the merit of this assertion and persuades this Court that said judgment indeed disregarded facts clearly and undisputably demonstrated by the proofs. The appealed judgment, consequently, will have to be reversed. The finding that “the truck driven by defendant Paul Zacarias occupied the lane of the jeep when the collision occurred” is a loose one, based on nothing more than the showing that at the time of the accident, the truck driven by Zacarias had edged over the painted center line of the road into the opposite lane by a width of twenty-five (25) centimeters. It ignores the fact that by the uncontradicted evidence, the actual center line of the road was not that indicated by the painted stripe but, according to measurements made and testified by Patrolman Juanito Dimaano, one of the two officers who investigated the accident, correctly lay thirty-six (36) centimeters farther to the left of the truck’s side of said stripe. The unimpugned testimony of Patrolman Dimaano, a witness for the private respondents, is to the effect that the jeep’s lane was three (3) meters and seventy-five (75) centimeters wide, and that of the truck three (3) meters and three (3) centimeters, measured from the center stripe to the corresponding side lines or outer edges of the road. The total width of the road being, therefore, six (6) meters and seventy-eight (78) centimeters, the true center line equidistant from both side lines would divide the road into two lanes each three (meters) and thirty-nine (39) centimeters wide. Thus, although it was not disputed that the truck overrode the painted stripe by twenty-five (25) centimeters, it was still at least eleven (11) centimeters away from its side of the true center line of the road and well inside its own lane when the accident occurred. By this same reckoning, since it was unquestionably the jeep that rammed into the stopped truck, it may also be deduced that it (the jeep) was at the time travelling beyond its own lane and intruding into the lane of the truck by at least the same 11-centimeter width of space. Not only was the truck’s lane, measured from the incorrectly located center stripe uncomfortably narrow, given that vehicle’s width of two (2) meters and forty-six (46) centimeters; the adjacent road shoulder was also

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virtually impassable, being about three (3) inches lower than the paved surface of the road and “soft” — not firm enough to offer traction for safe passage — besides which, it sloped gradually down to a three foot-deep ravine with a river below. The truck’s lane as erroneously demarcated by the center stripe gave said vehicle barely half a meter of clearance from the edge of the road and the dangerous shoulder and little room for maneuver, in case this was made necessary by traffic contingencies or road conditions, if it always kept to said lane. It being also shown that the accident happened at or near the point of the truck’s approach to a curve, which called for extra precautions against driving too near the shoulder, it could hardly be accounted negligent on the part of its driver to intrude temporarily, and by only as small as a twenty-five centimeter-wide space (less than ten inches), into the opposite lane in order to insure his vehicle’s safety. This, even supposing that said maneuver was in fact an intrusion into the opposite lane, which was not the case at all as just pointed out. Nor was the Appellate Court correct in finding that Paulino Zacarias had acted negligently in applying his brakes instead of getting back inside his lane upon espying the approaching jeep. Being well within his own lane, as has already been explained, he had no duty to swerve out of the jeep’s way as said Court would have had him do. And even supposing that he was in fact partly inside the opposite lane, coming to a full stop with the jeep still thirty (30) meters away cannot be considered an unsafe or imprudent action, there also being uncontradicted evidence that the jeep was “zigzagging” and hence no way of telling in which direction it would go as it approached the truck. Also clearly erroneous is the finding of the Intermediate Appellate Court that Zacarias had no driver’s license at the time. The traffic accident report attests to the proven fact that Zacarias voluntarily surrendered to the investigating officers his driver’s license, valid for 1979, that had been renewed just the day before the accident, on July 3, 1979. The Court was apparently misled by the circ*mstance that when said driver was first asked to show his license by the investigators at the scene of the collision, he had first inadvertently produced the license of a fellow driver, Leonardo Baricuatro, who had left said license in Davao City and had asked Zacarias to bring it back to him in Glan, Cotabato. The evidence not only acquits Zacarias of any negligence in the matter; there are also quite a few significant indicators that it was rather Engineer Calibo’s negligence that was the proximate cause of the accident. Zacarias had told Patrolman Dimaano at the scene of the collision and later confirmed in his written statement at the police headquarters that the jeep had been “zigzagging,” which is to say that it was travelling or being driven erratically at the time. The other investigator, Patrolman Jose Esparcia, also testified that eyewitnesses to the accident had remarked on the jeep’s “zigzagging.” There is moreover more than a suggestion that Calibo had been drinking shortly before the accident. The decision of the Trial Court adverts to further testimony of Esparcia to the effect that three of Calibo’s companions at the beach party he was driving home from when the collision occurred, who, hav-

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ing left ahead of him went to the scene when they heard about the accident, had said that there had been a drinking spree at the party and, referring to Calibo, had remarked: “Sabi na huag nang mag drive . . . pumipilit.” (loosely translated, “He was advised not to drive, but he insisted.”) It was Calibo whose driver’s license could not be found on his person at the scene of the accident, and was reported by his companions in the jeep as having been lost with his wallet at said scene, according to the traffic accident report, Exhibit “J.” Said license unexplainedly found its way into the record some two years later. Reference has already been made to the finding of the Trial Court that while Zacarias readily submitted to interrogation and gave a detailed statement to the police investigators immediately after the accident, Calibo’s two companions in the jeep and supposed eyewitnesses, Agripino Roranes and Maximo Patos, refused to give any statements. Furthermore, Roranes who, together with Patos, had sustained injuries as a result of the collision, waived his right to file a criminal case against Zacarias. Even, however, ignoring these telltale indicia of negligence on the part of Calibo, and assuming some antecedent negligence on the part of Zacarias in failing to keep within his designated lane, incorrectly demarcated as it was, the physical facts, either expressly found by the Intermediate Appellate Court or which may be deemed conceded for lack of any dispute, would still absolve the latter of any actionable responsibility for the accident under the rule of the last clear chance. Both drivers, as the Appellate Court found, had a full view of each other’s vehicle from a distance of one hundred fifty meters. Both vehicles were travelling at a speed of approximately thirty kilometers per hour. The private respondents have admitted that the truck was already at a full stop when the jeep plowed into it. And they have not seen fit to deny or impugn petitioners’ imputation that they also admitted the truck had been brought to a stop while the jeep was still thirty meters away. From these facts the logical conclusion emerges that the driver of the jeep had what judicial doctrine has appropriately called the last clear chance to avoid the accident, while still at that distance of thirty meters from the truck, by stopping in his turn or swerving his jeep away from the truck, either of which he had sufficient time to do while running at a speed of only thirty kilometers per hour. In those circ*mstances, his duty was to seize that opportunity of avoidance, not merely rely on a supposed right to expect, as the Appellate Court would have it, the truck to swerve and leave him a clear path. The doctrine of the last clear chance provides as valid and complete a defense to accident liability today as it did when invoked and applied in the 1918 case of Picart vs. Smith, supra, which involved a similar state of facts. xxx Since said ruling clearly applies to exonerate petitioner Zacarias and his employer (and co-petitioner) George Lim, an inquiry into whether or not

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the evidence support the latter’s additional defense of due diligence in the selection and supervision of said driver is no longer necessary and will not be undertaken. The fact is that there is such evidence in the record which has not been controverted.”

C. CASES WHEN THE DOCTRINE WAS HELD INAPPLICABLE. In most of the cases where the doctrine of last clear chance was discussed, the Supreme Court opted not to apply the same. The following are the reasons given by the Supreme Court in holding that the doctrine are inapplicable: a.

It does not apply if the plaintiff was not negligent, that is, only the defendant was negligent. (Pantranco North Express, Inc. vs. Baesa; Mc Kee vs. IAC, supra).

b.

It cannot also apply where the party charged (defendant) is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered; at least in cases in which any previous negligence of the party charged cannot be said to have contributed to the injury. (Ong vs. Metropolitan Water District; Mc Kee vs. IAC, supra; Rogelio Engada vs. Court of Appeals, No. 140698, June 30, 2003).

c.

It cannot be applied if defendant’s negligence is a concurrent cause and which was still in operation up to the time the injury was inflicted. (Bustamante vs. Court of Appeals, supra). In other words, it cannot be applied in the field of joint tortfeasors and it cannot be invoked as between defendants who are concurrently negligent.

d.

It does not arise where the plaintiff, a passenger, filed an action against a carrier based on contract. (Anuran vs. Buno, supra; Philippine Rabbit Bus Lines, Inc. vs. Intermediate Appellate Court, August 30, 1990; Bustamante vs. Court of Appeals).

e.

It is not applicable if the actor, though negligent, was not aware of the danger or risk brought about by a prior fraud or negligent act. (Bank of Philippine Islands vs. Court of Appeals, supra; LBC Air Cargo, Inc. vs. Court of Appeals, supra).

With respect to the first situation mentioned above, there may be instances when courts use the concept of “last clear chance” in order to justify the ruling that the defendant is negligent even if the

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plaintiff is clearly not negligent. However, a closer examination of these cases will indicate that the application of the doctrine of the “last clear chance” is not really necessary. The rulings are nothing more than statements that the damages or injuries are foreseeable. A ruling that the defendant was negligent because he has the last clear chance of avoiding the damage is nothing more than a finding that the defendant can reasonably foresee the injury and that a reasonable man in his position should have and could have avoided the same (See: Edna A. Raynera, et al. v. Freddie Hiceta, et al., No. 120027, April 21, 1999, 306 SCRA 102). CASES: PANTRANCO NORTH EXPRESS, INC. vs. MARICAR BASCOS BAESA, et al. G.R. Nos. 79050-51, November 14, 1989 In this Petition, Pantranco North Express, Inc. (PANTRANCO), asks the Court to review the decision of the Court of Appeals in CA-G.R. Nos. 05494-95 which affirmed the decisions of the Court of First Instance of Rosales, Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein PANTRANCO was ordered to pay damages and attorney’s fees to herein private respondents.

The pertinent facts are as follows:

At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa. The group, numbering fifteen (15) persons, rode in the passenger jeepney driven by David Ico, who was also the registered owner thereof. From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway going to Malalam River. Upon reaching the highway, the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepney’s lane while negotiating a curve, and collided with it. As a result of the accident David Ico, spouses Ceasar Baesa and Marilyn Baesa and their children, Harold Jim and Marcelino Baesa, died while the rest of the passengers suffered injuries. The jeepney was extensively damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time on up to the present, Ramirez has never been seen and has apparently re-

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mained in hiding. All the victims and/or their surviving heirs except herein private respondents settled the case amicably under the “No Fault” insurance coverage of PANTRANCO. Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children, filed separate actions for damages arising from quasi-delict against PANTRANCO, respectively docketed as Civil Case No. 561-R and 589-R of the Court of First Instance of Pangasinan. In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged negligence as the proximate cause of the accident, invoked the defense of due diligence in the selection and supervision of its driver, Ambrosio Ramirez. [The trial court rendered judgment against PANTRANCO awarding damages in favor of the private respondents. The judgement was modified on appeal.] xxx Petitioner faults the Court of Appeals for not applying the doctrine of the “last clear chance” against the jeepney driver. Petitioner claims that under the circ*mstances of the case, it was the driver of the passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. The doctrine of the last clear chance was defined by this Court in the case of Ong vs. Metropolitan Water District, (104 Phil. 397 [1958]), in this wise: The doctrine of the last clear chance simply, means that the negligence of a claimant does not preclude a recovery for the negligence of defendant where it appears that the latter, by exercising reasonable care and prudence, might have avoided injurious consequences to claimant notwithstanding his negligence. The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff. (Picart vs. Smith, 37 Phil. 809 [1918]; Glan People’s Lumber and Hardware, et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No. 70493, May 18, 1989). The subsequent negligence of the defendant in failing to exercise ordinary care to avoid injury to plaintiff becomes the immediate or proximate cause of the accident which intervenes between the accident and the more remote negligence of the plaintiff, thus making the defendant liable to the plaintiff. (Picart vs. Smith, supra). Generally, the last clear chance doctrine is invoked for the purpose of making a defendant liable to a plaintiff who was guilty of prior or antecedent

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negligence, although it may also be raised as a defense to defeat claim for damages. To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its driver was not the proximate cause of the accident and that the sole proximate cause was the supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is petitioner’s position that even assuming arguendo, that the bus encroached into the lane of the jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt shoulder on his right without danger to himself or his passengers.

The above contention of petitioner is manifestly devoid of merit.

Contrary to the petitioner’s contention, the doctrine of “last clear chance” finds no application in this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or should, with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or injury if he does not know or could not have known the existence of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. As held by this Court in the case of Vda. De Bonifacio vs. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an approaching vehicle coming towards him on the wrong side, will return to his proper lane of traffic. There was nothing to indicate to David Ico that the bus could not return to its own lane or was prevented from returning to the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice but to swerve the steering wheel to the left and encroach on the jeepney’s lane because there was a steep precipice on the right. (CA Decision, p. 2; Rollo, p. 45). However, this is belied by the evidence on record which clearly shows that there was enough space to swerve the bus back to its own lane without any danger. (CA Decision, p. 7; Rollo, p. 50). Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus was speeding towards Manila. (CA Decision, p. 2; Rollo, p. 45). By the time David Ico must have realized that the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus was running prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine “can never apply where the party charged

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is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered.” (Ong vs. Metropolitan Water District, supra). Petitioner likewise insists that David Ico was negligent in failing to observe Section 43(c), Article III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a through highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction on such through highway. Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of the accident, the jeepney had already crossed the intersection and was on its way to Malalam River. Petitioner itself cited Fe Ico’s testimony that the accident occurred after the jeepney had travelled a distance of about two (2) meters from the point of intersection. (Petition p. 10; Rollo, p. 27). In fact, even the witness for the petitioner, Leo Marantan, testified that both vehicles were coming from opposite directions (CA Decision, p. 7; Rollo, p. 50), clearly indicating that the jeepney had already crossed the intersection. Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney coming from the opposite direction was the sole and proximate cause of the accident without which the collision would not have occurred. There was no supervening or intervening negligence on the part of the jeepney driver which would have made the prior negligence of petitioner’s driver a mere remote cause of the accident. LBC AIR CARGO vs. COURT OF APPEALS 241 SCRA 619 [1995] In this petition for review, the application of the doctrine of “proximate cause” and “last clear chance” is, once again, being put to test. The petition questions the decision of the Court of Appeals dated 18 July 1991, which has reversed that of the trial court. The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15 November 1987. Rogelio Monterola, a licensed driver, was traveling on board his Suzuki motorcycle towards Mangagoy on the right lane along a dusty national road in Bislig, Surigao del Sur. At about the same time, a cargo van of the LBC Air Cargo Incorporated, driven by defendant Jaime Tano, Jr., was coming from the opposite direction on its way to the Bislig Airport. On board were passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside Tano. When Tano was approaching the vicinity of the airport road entrance on his left, he saw two vehicles racing against each other from the opposite direction. Tano stopped his vehicle and waited for the two racing vehicles to pass by. The stirred cloud of dust made visibility extremely bad. Instead of waiting for the dust to set-

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tle, Tano started to make a sharp left turn towards the airport road. When he was about to reach the center of the right lane, the motorcycle driven by Monterola suddenly emerged from the dust and smashed head-on against the right side of the LBC van. Monterola died from the severe injuries he sustained. A criminal case for “homicide thru reckless imprudence” was filed against Tano. A civil suit was likewise instituted by the heirs of deceased Monterola against Tano, along with Fernando Yu and LBC Air Cargo Incorporated, for the recovery of damages. The two cases were tried jointly by the Regional Trial Court, Branch 29, of Surigao del Sur. [The trial court dismissed both cases on the ground that the proximate cause of the “accident” was the negligence of deceased. On appeal, the Court of Appeals reversed the decision of the trial court and ordered defendants to pay damages to the plaintiffs.]

In the instant petition for review, petitioners contend that —

“1.

The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the driving of his vehicle and in failing to give a signal to approaching vehicles of his intention to make a left turn.

“2.

The Court of Appeals erred in not finding that the proximate cause of the accident was the victim’s negligence in the driving of his motorcycle in a very fast speed and thus hitting the petitioner’s cargo van.”

The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the detailed analyses made by the Court of Appeals in arriving at its findings is at once apparent. Said the appellate court: “That visibility was poor when Jaime Tano made a left turn was admitted by the latter. “Q

When these two vehicles passed by your parked vehicle, as you said, there were clouds of dust, did I get you right?

“A

Yes sir, the road was dusty.

“Q

So much so that you could no longer see the vehicles from the opposite direction following these vehicles?

“A

It is not clear, sir, so I even turned on my left signal and the headlight.

“Q

What do you mean by it was not clear, you could not see the incoming vehicles?

“A

I could not see because of the cloud of dust.

“Q

And it was at this juncture, when you were to follow your theory, when you started your LBC van again and swerved to the left leading to the Bislig airport?

“A

I did not enter immediately the airport, I waited the dust to clear a

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little before I drove.

x x x

x x x

xxx

“Q

In other words when you said that it was slightly clear, you would like to tell the Honorable Court that you could only clearly see big vehicles . . . but not small vehicles like a motorcycle?

“A

I could see clearly big vehicles but not small vehicles like a motorcycle.

“Q

Like the motorcycle of Rogelio Monterola?

“A

Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp. 26-30) (p. 15, Appellant’s brief).

“Tano should not have made a left turn under the conditions admitted by him. Under the Land Transportation and Traffic Code, driver of any vehicle upon a highway, before starting, stopping or turning from a direct line, is called upon to first see that such movement can be made in safety, and whenever the operation of any other vehicle approaching may be affected by such movement, shall give a signal plainly visible to the driver of such other vehicles of the intention to make such movement. (Sec. 44, R.A. 4136, as amended). This means that before a driver turns from a direct line, in this case to the left, the driver must first see to it that there are no approaching vehicles and, if there are, to make the turn only if it can give a signal that is plainly visible to the driver of such other vehicle. Tano did neither in this case, for he recklessly made a left turn even as visibility was still very poor, and thus failed to see the approaching motorcycle and warn the latter of his intention to make a left turn. This is plain and simple negligence. “In thus making the left turn, he placed his vehicle directly at the path of the motorcycle which, unaware of Tano’s intention to make a left turn, smashed at Tano’s vehicle. It was Tano’s negligence that created the risk or the condition of danger that set into operation the event that led to the smashedup and untimely death of Rogelio Monterola. “Rogelio Monterola’s motorcycle would not have hit the cargo van had Tano, in operating it, not recklessly turned left when visibility was still poor, and instead observed the directive of the Land Transportation Code that before doing so, he should first see to it that such movement can be made in safety, and that whenever any other vehicle approaching may be affected by such movement, should give a signal plainly visible to the driver of such other vehicle of the intention to make such movement. “That Rogelio Monterola was running fast despite poor visibility as evidenced by the magnitude of the damage to the vehicles is no defense. His negligence would at most be contributory. (Article 2179, N.C.C.). Having negligently created the condition of danger, defendants may not avoid liability by pointing to the negligence of the former.

x x x

x x x

xxx

“Tano’s proven negligence created a presumption of negligence on the part of

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his employer, the LBC Air Cargo Corporation, in supervising its employees properly and adequately (Phoenix Construction, Inc. vs. Intermediate Appellate Court, supra), which may only be destroyed by proof of due diligence in the selection and supervision of his employees to prevent the damage. (Article 2180, N.C.C.). No such defense was interposed by defendants in their answer. “ We, however, fail to see Fernando Yu’s liability as Manager of LBC-Mangagoy Branch Office, there being no employer-employee relationship between him and Jaime Tano who is a driver of the LBC Air Cargo, Inc. It was held in Philippine Rabbit Bus Lines, Inc., et al. vs. Phil. American Forwarders, Inc., 63 SCRA 231, that the term ‘Manager’ in Article 2180 is used in the sense of ‘employer.’ Hence, no tortuous or quasi-delictual liability can be fastened on Fernando Yu as branch manager of LBC Air Cargo, Inc. “ Now for the amount of damages. Aside from the indemnity for death which People vs. Sazon, 189 SCRA 700, the evidence disclose that as a result of the accident, Rogelio Monterola’s motorcycle was damaged, the repair cost of which amounted to P7,361.00 (Exh. E-1), for the hospitalization, wake and burial expenses, plaintiff spent P15,000.00. There is likewise no question that by reason of Rogelio Monterola’s untimely death, his only child 14 years old Sherwin Monterola, suffered mental anguish, fright, serious anxiety, wounded feelings and moral shock that entitles him to moral damages which we hereby fix at P20,000.00. Because of defendants’ refusal to indemnify the plaintiff for his father’s death, the latter was compelled to litigate and engage the services of counsel. He is therefore entitled to an additional amount of P10,000.00 for attorney’s fees and expenses of litigation. “ Considering, however, the contributory negligence of Rogelio Monterola in driving at a fast clip despite the fact that the road was dusty, we reduce the aggregate amount of damages to which the plaintiff is entitled by twenty percent.’’ (Phoenix Construction, Inc. vs. Intermediate Appellate Court, supra). rom every indication, the proximate cause of the accident was the negliF gence of Tano who, despite extremely poor visibility, hastily executed a left turn (towards the Bislig airport road entrance) without first waiting for the dust to settle. It was this negligent act of Tano, which had placed his vehicle (LBC van) directly on the path of the motorcycle coming from the opposite direction, that almost instantaneously caused the collision to occur. Simple prudence required him not to attempt to cross the other lane until after it would have been safe from and clear of any oncoming vehicle. etitioners poorly invoke the doctrine of “last clear chance” (also referred to, P at times, as “supervening negligence” or as “discovered peril”). The doctrine, in essence, is to the effect that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impeding harm and failed to do so is chargeable with the consequences thereof. (see Picart vs. Smith, 37 Phil. 809). Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of

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damages for the supervening negligence of, or bar a defense against liability sought by, another if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence. (Pantranco North Express, Inc. vs. Baesa, 179 SCRA 384; Glan People’s Lumber and Hardware vs. Intermediate Appellate Court, 173 SCRA 464). I n the case at bench, the victim was traveling along the lane where he was rightly supposed to be. The incident occurred in an instant. No appreciable time had elapsed, from the moment Tano swerved to his left to the actual impact, that could have afforded the victim a last clear opportunity to avoid the collision. I t is true, however, that the deceased was not all that free from negligence in evidently speeding too closely behind the vehicle he was following. We, therefore, agree with the appellate court that there indeed was contributory negligence on the victim’s part that could warrant a mitigation of petitioners’ liability for damages.

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CHAPTER 6

HUMAN RELATIONS: INTENTIONAL TORTS This chapter and the next two chapters deal with torts covered by Chapter 2 of the Preliminary Title of the New Civil Code of the Philippines entitled “Human Relations.” Although Chapter 2 covers negligent acts, the torts mentioned therein are mostly intentional in nature or torts involving malice or bad faith. The specific torts and their requisites will be discussed and arranged by topic and the statutory provisions, both under the Civil Code and special laws, on which they are based will be identified. Other matters relating to independent civil actions, particularly those concerning concurrent causes of action and remedies are discussed in Chapter 9 of this work. 1.

REASON FOR CHAPTER ON HUMAN RELATIONS

The Report of the Code Commission states the reason why Chapter 2 of the Preliminary Title of the New Civil Code entitled “Human Relations” — a chapter which is not found in Old Civil Code — was included in the draft of the New Civil Code. The Report states: “Chapter 2 of the Preliminary Title is devoted to “Human Relations.” Therein are formulated some basic principles that are to be observed for the rightful relationship between human beings and for the stability of the social order. The present Civil Code merely states the effects of the law, but fails to draw the spirit of the law. This chapter is designed to indicate certain norms that spring from the fountain of good conscience. These guides for human conduct should run as golden threads through society, to the end that law may approach its supreme ideal, which is the sway and dominance of justice. x x x Needless to say, every sound legislation from time immemorial has sought to act as an arbiter between the conflicting rights of individuals. To accomplish so noble a mission, the lawmaker 330

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makes it imperative that every one duly respect the rights of others. (p. 39)”

Certain basic principles mentioned by the Code Commission had already been discussed in the initial chapter of this work — justice, equity, democracy, and the need to exalt human dignity. The examples given earlier show that such basic principles find further implementation in specific provisions in Chapter 2 of the Preliminary Title of the Civil Code. They will be examined more closely in the present chapter. 2.

CATCH ALL PROVISIONS A. CONCEPTS.

As pointed out in the preliminary chapter, the expanded coverage of tort finds resonance in Articles 19, 20 and 21 of the New Civil Code. Article 20 provides that every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. The Code Commission expressed the view that the rule under Article 20 “pervades the entire legal system, and renders it impossible that a person who suffers damage because another has violated some legal provision, should find himself without relief.” (Report, p. 39). Article 19, on the other hand, is believed to be a mere declaration of principles which is being implemented by other provisions. (Velayo, etc. vs. Shell Co. of the Phils., Inc., 100 Phil. 186, 202 [1956]). Article 19 declares a principle of law and Article 21 gives flesh to its provisions. (Saudi Arabia Airlines vs. Court of Appeals, 297 SCRA 469 [1998]). The Supreme Court explained the significance of the said articles in this wise: Article 19, known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which may be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements

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of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: “With this article (Article 21), combined with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles.” (Tolentino, 1 Civil Code of the Philippines 72). There is however, no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the circ*mstances of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]). The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages. There is a common element under Articles 19 and 21, and that is, the act must be intentional. However, Article 20 does not distinguish: the act may be done either “willfully,” or “negligently.” (Albenson Enterprises vs. Court of Appeals, supra).

In another case, the Supreme Court offered the following explanation as to the nature of what Judge Sanco calls “catch-all” provisions: “This article (Art. 19), known to contain what is commonly referred to as the principle of abuse of rights, sets certain standards which must be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore,

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recognizes a primordial limitation on all rights; that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. When a light is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. But while Article 19 lays down a rule of conduct for the government of human relations and for the maintenance of social order, it does not provide a remedy for its violation. Generally, an action for damages under either Article 20 or Article 21 would be proper. xxx This article (Art. 21), adopted to remedy the “countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they have actually suffered material and moral injury” (Id.) should “vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human foresight to provide for specifically in the statutes” (Id., at p. 40; See also PNB vs. CA, G.R. No. L-27155, May 18, 1978, 83 SCRA 237, 247). In determining whether or not the principle of abuse of rights may be invoked, there is no rigid test which can be applied. While the Court has not hesitated to apply Article 19 whether the legal and factual circ*mstances called for its application (See for e.g., Velayo vs. Shell Co. of the Phil., Ltd., 100 Phil. 186 (1956); PNB vs. CA, supra; Grand Union Supermarket, Inc. vs. Espino, Jr., G.R. No. L-48250, December 28, 1979, 94 SCRA 953; PAL vs. CA, G.R. No. L-46558, July 31, 1981, 106 SCRA 391; United General Industries, Inc. vs. Paler, G.R. No. L-30205, March 15, 1982, 112 SCRA 404; Rubio vs. CA, G.R. No. 50911, August 21, 1987, 153 SCRA 183) the question of whether or not the principle of abuse of rights has been violated resulting in damages under Article 20 or Article 21 or other applicable provision of law, depends on the circ*mstances of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]).

Under Article 21, damages are recoverable even though no positive law was violated (Report, p. 26). There are innumerable instances of this kind which cannot be the subject of specific statutory provisions in view of the impossibility of foreseeing every sort of human misconduct. (ibid.). The article was further explained in this wise: “Thus at one stroke, the legislator, if the foregoing rule is approved, would vouchsafe adequate legal remedy for that untold number of moral wrongs which it is impossible for human

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foresight to provide for specifically in the statutes. But, it may be asked, would not this proposed article obliterate the boundary line between morality and the law? The answer is that, in the last analysis, every good law draws its breath of life from morals, from those principles which are written with the words of fire in the conscience of man. If this premise is admitted, then the proposed rule is a prudent earnest of justice in the face of the impossibility of enumerating, one by one, all wrongs which cause damage. When it is reflected that while codes of law and statutes have changed from age to age, the conscience of man has remained fixed to its moorings, one can not but feel that it is safe and salutary to transmute, as far as may be, moral norms into legal rules, thus imparting to every legal system that enduring quality which ought to be one of its superlative attributes. Furthermore, there is no belief of more baneful consequences upon the social order than that a person may with impunity cause damage to his fellowmen so long as he does not break any law of the State, though he may be defying the most sacred postulates of morality. What is more, the victim loses faith in the ability of the government to afford him protection or relief. A provision similar to the one under consideration is embodied in Article 826 of the German Civil Code. The same observations may be made concerning injurious acts that are contrary to public policy but are not forbidden by statute. There are countless acts of such character, but have not been foreseen by the lawmakers. Among these are many business practices that are unfair or oppressive, and certain acts of landholders and employers affecting their tenants and employees which contravene the public policy of social justice.” (Report, pp. 40-41).

B. DAMAGE. It should be emphasized, however, that an action can only prosper when damage, material or otherwise, was suffered by the plaintiff. An action based on Articles 19, 20 and 21 will be dismissed if the plaintiff merely seeks “recognition.” Thus, a complaint will be dismissed if the plaintiffs filed an action to be merely recognized as architects of a building. (Enrique J. L. Ruiz, et al. vs. The Secretary of National Defense, G.R. No. L-15526, December 28, 1963). The Supreme Court observed in Ruiz that: “x x x The sole object of the appeal is only to secure for them a recognition, that they were allegedly the co-architects

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of Panlilio, in the construction of the hospital, so as to enhance their professional prestige and not to impair their standing. If this is the goal of appellants, a judicial declaration to that effect would seem unnecessary. Let us ponder over the thought that a brilliant professional enjoys the respect and esteem of his fellowmen, even without any court declaration of such fact, and that an incompetent one may summon all the tribunals in the world, to proclaim his genius in vain. But appellants invoke Article 21 of the Civil Code, which states — “Any person who wilfully cause loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damages.” contending that the word “injury” in the said article, refers not only to any indeterminate right or property, but also to honor or credit. (I Tolentino Civ. Code, p. 67). It may be added, however, that this article also envisions a situation where a person has a legal right, and such right is violated by another in a manner contrary to morals, good customs or public policy; it presupposes losses or injuries, material or otherwise, which one may suffer as a result of said violation. The pleadings do not show that damages were ever asked or alleged in connection with this case, predicted upon the article aforecited. And under the facts and circ*mstances obtaining in this case, one cannot plausibly sustain the contention that the failure or refusal to extend the recognition, was an act contrary to morals, good customs or public policy.”

Interestingly, the Supreme Court likewise ruled that the defendant may likewise be guilty of tort under Articles 19 and 21 even if he acted in good faith. (Grand Union Supermarket vs. Jose J. Espino, Jr., G.R. No. L-48250, December 28, 1979). In those cases, liability to pay moral damages may not be imposed on the defendant who acted in good faith. (Llorente vs. Court of Appeals, 202 SCRA 309 [1991]). 3.

ABUSE OF RIGHT A. ELEMENTS. ART. 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

The decision in Albenson (cited in BPI Express Card Corp. vs. Court of Appeals, 296 SCRA 260 [1998]) enumerates the elements of an abuse of right under Article 19 to wit: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of

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prejudicing or injuring another. On the other hand, the Supreme Court of Spain cites the following elements: (1) the exercise of a right which is objective and apparently legal; (2) damage or injury to an interest not specifically protected by a legal precept; and (3) immorality or anti-social character of the damage or injury caused either with intent to injure or without serious or legitimate purpose. (5 Caguioa 28-29). The rule is a departure from the traditional view that a person is not liable for damages resulting from the exercise of one’s right – qui iure suo utitur neminem laedit. (5 Caguioa 26; 5 Tolentino 60). It is practically a restatement of the Roman Law principle of honeste vivere, alterum non laedere, jus suum cuique tribuere. (5 Caguioa 27, citing I-II Castan, 8th ed., pp. 52-53). B. EXAMPLES.

a. Cases when there is abuse.

An example of abuse of right is a case where a creditor — taking advantage of his knowledge that insolvency proceedings were to be instituted by the debtor if the creditors did not come to an understanding as to the manner of distribution of the insolvent’s asset among them, and believing it most probable that they would not arrive at such understanding — schemed and transferred its credit to a sister company in the United States which, in turn, secured a writ of attachment in the court therein thereby gaining control over the said plane. As a consequence, the other creditors were deprived of their lawful share thereto and the assignee that was later appointed was deprived of his right to recover said plane. (Velayo, etc. vs. Shell Co., of the Phils., et al., supra). Another example of abuse of right is when a bank twice disapproved a proposed lease of a sugar quota by its debtor. The debtor previously mortgaged the sugar quota to the bank. The bank later disapproved the application of the debtor to obtain possession of the sugar quota so that said debtor can lease the same to a third person. The disapproval was made even if responsible officers of the bank already informed the debtor and the prospective lessee that the bank will approve the lease if the consideration therefor was increased from P2.50 to P2.80 per picul. The disapproval was made by the Board of Directors because it wanted to raise the consideration for the lease to P3.00 per picul. The Supreme Court ruled that there was abuse of right because the disapproval was unreasonable. The disapproval was made knowing that the agricultural year was about to expire,

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at which time the mortgagor would not be able to utilize the sugar quota. The mortgagor was not able to use the sugar quota although the difference between the price demanded by the board and the proposed lease was only a small amount. (Philippine National Bank vs. Court of Appeals, 83 SCRA 237). There is also abuse of right if the principal unreasonably terminated an agency agreement for selfish reasons. (Arturo P. Valenzuela, et al. vs. The Hon. Court of Appeals, 190 SCRA 1, G.R. No. 83122, October 19, 1990; Sevilla vs. Court of Appeals, 160 SCRA 171). Even if the agency can be terminated at will, termination should not be done with bad faith or abuse of right. Abuse of right was likewise established in Llorente vs. Court of Appeals, et al. (202 SCRA 309 [1991]). The person sought to be held liable in said case was a public officer who had authority to approve clearances of resigning employees. Since he had authority to approve clearances he also had the right to disapprove the same if the employee has pending accountabilities. The absence of accountability was a condition imposed by the rules for the issuance of a clearance. However, if the practice in the office is to disregard the condition and to clear resigning employees subject to deduction of accountabilities from his gratuity benefits, the officer who withheld action on the clearance of the employee is liable for damages for abuse of right. There is such abuse if he did not issue a clearance to the plaintiff but issued the same to all other employees who were similarly situated as the plaintiff. In Sergio Amonoy v. Sps. Jose Gutierrez (G.R. No. 140420, February 15, 2001, 351 SCRA 731) the petitioners commenced the demolition of the house of the private respondents under the authority of a writ of demolition which was issued by the trial court. A temporary restraining order was issued by the Court of Appeals against the writ of demolition but the petitioners still pursued the demolition. There was abuse of right in this case and the fact that the writ was not subsequently annulled is of no moment. The principle of damnum absque injuria is not applicable because the principle is premised on the valid exercise of a right. Anything less or beyond such exercise will not give rise to the legal protection that that principle accords. And when damage or prejudice to another is occasioned thereby, liability ensues. In Jose Arlequi v. Hon. Court of Appeals (G.R. No. 126437, March 6, 2002), the tenants of an apartment building formed an association to represent them in the negotiation with the owner for the purchase

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of their respective units. Josue Arlegui and Mateo Tan were the Vice President and Auditor, respectively, of the association. Later, the members were surprised to learn that Mr. Tan surreptitiously purchased the building and later sold one unit to Mr. Arlegui. There was abuse of right on the part of Mr. Arlegui and Mr. Tan because they violated the trust reposed on them as officers and negotiators in behalf of the tenants. There was also abuse of right in Petrophil Corporation v. Court of Appeals, et al. (G.R. No. 122796, December 10, 2001) when the petitioner terminated its hauling contract with private respondent Cruz (whereby the latter supplied trucks for the hauling of the products of the petitioner) because the latter sympathized with the picketing workers of the petitioner. The Supreme Court explained: On the first issue, we agree with petitioner that the contract clearly provided for two ways of terminating the contract, and, one mode does not exclude the other. Although the contract provided for causes for termination, it also stated in paragraph 11 that the contract was for an indefinite term subject to the right of Petrophil to terminate it any time after a written notice of 30 days. When the language of a contract is clear, it requires no interpretation. Thus, the finding that the termination of the contract was “for cause”, is immaterial. When petitioner terminated the contract “without cause”, it was required only to give Dr. Cruz a 30-day prior written notice, which it did in this case. However, we differ with petitioner on the second issue. Recall that before Petrophil terminated the contract on May 25, 1987, there was a strike of its employees at the Pandacan terminal. Dr. Cruz and her husband were seen at the picket line and were reported to have instructed their truck drivers not to load petroleum products. At the resumption of the operation in Pandacan terminal, Dr. Cruz’s contract was suspended for one week and eventually terminated. Based on these circ*mstances, the Court of Appeals like the trial court concluded that Petrophil terminated the contract because of Dr. Cruz’s refusal to load petroleum products during the strike. In respondent court’s view, the termination appeared as a retaliation or punishment for her sympathizing with the striking employees. Nowhere in the record do we find that petitioner asked her to explain her actions. Petrophil simply terminated her contract. These factual findings are binding and conclusive on us, especially in the absence of any allegation that said findings are unsupported by the evidence, or that the appellate and trial courts misapprehended these facts. 16 In terminating the hauling contract of Dr. Cruz without hearing her side on the factual context above described, a petitioner opened itself to a charge of bad faith. While Petrophil had the

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right to terminate the contract, petitioner could not act purposely to injure private respondents. In BPI Express Card Corporation vs. CA, 296 SCRA 260, 272 (1998), we held that there is abuse of a right under Article 19 if the following elements are present: 1) there is a legal right or duty; 2) which is exercised in bad faith; 3) for the sole purpose of prejudicing or injuring another. We find all these three elements present in the instant case. Hence, we are convinced that the termination by petitioner of the contract with Dr. Cruz calls for appropriate sanctions by way of damages.

b. When abuse is absent.

However, the Supreme Court ruled in Mita Pardo de Tavera vs. Philippine Tuberculosis Society, et al. (G.R. No. L-48928, February 25, 1982) that there was no actionable wrong where the defendants acted strictly in accordance with the Constitution and By-laws of an association or with a contract. In said case, the petitioner was removed as executive director by the board of the society in accordance with the constitution and by-laws. The Supreme Court observed that: “While these provisions present some basic principles that are to be observed for the rightful relationship between human beings and the stability of social order, these are merely guides for human conduct in the absence of specific legal provisions and definite contractual stipulations. In the case at bar, the Code of By-Laws of the Society contains a specific provision governing the term of office of petitioner. The same necessarily limits her rights under the New Civil Code and the New Constitution upon acceptance of the appointment. Moreover, the act of the Board in declaring her position as vacant is not only in accordance with the Code of By-Laws of the Society but also meets the exacting standards of honesty and good faith. The meeting of May 29, 1974, at which petitioner’s position was declared vacant, was called specifically to take up the unfinished business of the Reorganizational Meeting of the Board of April 30, 1974. Hence, said act cannot be said to impart a dishonest purpose or some moral-obliquity and conscious doing to wrong but rather emanates from the desire of the Board to reorganize itself.”

There is also no abuse of right when an owner of a lot which adjoins the highway fenced his property. No abuse of right was committed although the tenants in the inner lot can no longer pass through his property. In the absence of an easem*nt of right of way, the owner is free to enclose his property even if damage to another will result. (Custodio vs. Court of Appeals, supra). It is a case of damage without injury.

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Likewise, the Department Head, the Assistant Division Superintendent and the Principal of a high school are not guilty of abuse of right when a teacher was placed in the list of excess teacher when the action was not motivated by undue motives (Virginia M. Andrade v. Court of Appeals, G.R. No. 127932, December 7, 2001). Abuse of right is also absent if a school did not confer upon the plaintiff a degree with honors because it merely exercised its discretion in accordance with the rules. (University of San Carlos, et al. vs. Court of Appeals, G.R. No. L-79237, October 18, 1988). However, if there was already an order from a superior officer to allow the plaintiff to graduate with honors, the officer who failed to implement the order is liable for damages not on account of abuse of right but neglect of duty. The reason is that the officer did not have any right to withhold the implementation of the order of the superior officer to allow the plaintiff to graduate with honors. (Ledesma vs. Court of Appeals). Similarly, there is no abuse of right if the defendants were legitimately exercising their constitutional rights. In Garciano, et al. vs. Hon. Court of Appeals (212 SCRA 436 [1992]), the majority of the directors of a school reinstated a teacher who was previously terminated from service. Later, the President, Vice-President, Secretary and three board members resigned because of such action. Earlier, the school principal and some teachers allegedly threatened to resign en masse if the petitioner teacher would be reinstated. The petitioner sued the defendants for damages under Articles 19, 20 and 21 but the Supreme Court rejected the claim explaining, inter alia: “The Court of Appeals was correct in finding that petitioner’s discontinuance from teaching was her own choice. While respondents admittedly wanted her service terminated, they actually did nothing to physically prevent her from reassuming her post, as ordered by the school’s Board of Directors. That the school principal and Fr. Wiertz disagreed with Board’s decision to retain her, and some teachers allegedly threatened to resign en masse, even if true, did not make them liable to her for damages. They were simply exercising their right to free speech or their right to dissent from the Board’s decision. Their acts were not contrary to law, morals, good customs or public policy. x x x”

The Supreme Court likewise rejected the allegation that there was abuse of right in Baron’s Marketing Corporation vs. Court of Appeals (286 SCRA 98 [1998]). The plaintiff in said case filed a complaint for the recovery of the price of the goods that were delivered to the defendant. In its answer, the defendant claimed that the plaintiff abused its right when it previously rejected defendant’s offer of set-

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tlement and subsequently filed an action for collection. It argued that if there was an offer by the debtor to pay its debt or obligation supported by post-dated checks and with provision for interest, the normal response of the creditor would be to accept the offer of compromise. The Supreme Court rejected such argument and explained: Both parties agree that to constitute an abuse of rights under Article 19 the defendant must act with bad faith or intent to prejudice the plaintiff. They cite the following comments of Tolentino as their authority: Test of Abuse of Right. — Modern jurisprudence does not permit acts which, although not unlawful, are anti-social. There is undoubtedly an abuse of right when it is exercised for the only purpose of prejudicing or injuring another. When the objective of the actor is illegitimate, the illicit act cannot be concealed under the guise of exercising a right. The principle does not permit acts which, without utility or legitimate purpose cause damage to another, because they violate the concept of social solidarity which considers law as rational and just. Hence, every abnormal exercise of a right, contrary to its socio-economic purpose, is an abuse that will give rise to liability. The exercise of a right must be in accordance with the purpose for which it was established, and must not be excessive or unduly harsh; there must be no intention to injure another. Ultimately, however, and in practice, courts, in the sound exercise of their discretion, will have to determine all the facts and circ*mstances when the exercise of a right is unjust, or when there has been an abuse of right. The question, therefore, is whether private respondent intended to prejudice or injure petitioner when it rejected petitioner’s offer and filed the action for collection. We hold in the negative. It is an elementary rule in this jurisdiction that good faith is presumed and that the burden of proving bad faith rests upon the party alleging the same. In the case at bar, petitioner has failed to prove bad faith on the part of private respondent. Petitioner’s allegation that private respondent was motivated by a desire to terminate its agency relationship with petitioner so that private respondent itself may deal directly with Meralco is simply not supported by the evidence. At most, such supposition is merely speculative. Moreover, we find that private respondent was driven by very legitimate reasons for rejecting petitioner’s offer and instituting the action for collection before the trial court. As pointed out by private respondent, the corporation had its own “cash position to protect in order for it to pay its own obligations.” This is not such “a lame and poor rationalization” as petitioner purports it to be. For if private respondent were to be required to

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accept petitioner’s offer, there would be no reason for the latter to reject similar offers from its other debtors. Clearly, this would be inimical to the interests of any enterprise, especially a profitoriented one like private respondent. It is plain to see that what we have here is a mere exercise of rights, not an abuse thereof. Under these circ*mstances, we do not deem private respondent to have acted in a manner contrary to morals, good customs or public policy as to violate the provisions of Article 21 of the Civil Code.

CASES: UNIVERSITY OF THE EAST vs. ROMEO A. JADER G.R. No. 132344, February 17, 2000 May an educational institution be held liable for damages for misleading a student into believing that the latter had satisfied all the requirements for graduation when such is not the case? This is the issue in the instant petition for review premised on the following undisputed facts as summarized by the trial court and adopted by the Court of Appeals (CA), to wit: “Plaintiff was enrolled in the defendants’ College of Law from 1984 up to 1988. In the first semester of his last year (School year 1987-1988), he failed to take the regular final examination in Practice Court I for which he was given an incomplete grade (Exhibits ‘2,’ also Exhibit ‘H’). He enrolled for the second semester as fourth year law student (Exhibit ‘A’) and on February 1, 1988 he filed an application for the removal of the incomplete grade given him by Professor Carlos Ortega (Exhibits ‘H-2,’ also Exhibit ‘2’) which was approved by Dean Celedonio Tiongson after payment of the required fee. He took the examination on March 28, 1988. On May 30, 1988, Professor Carlos Ortega submitted his grade. It was a grade of five (5). (Exhibits ‘H-4,’ also Exhibits ‘2-L,’ ‘2-N’). “In the meantime, the Dean and the Faculty Members of the College of Law met to deliberate on who among the fourth year students should be allowed to graduate. The plaintiff’s name appeared in the Tentative List of Candidates for graduation for the Degree of Bachelor of Laws (LL.B.) as of Second Semester (1987-1988) with the following annotation: “JADER ROMEO A. Def. Conflict of Laws — x-1-87-88, Practice Court I — Inc., 1-87-88. C-1 to submit transcript with S.O. (Exhibits ‘3,’ ‘3-C-1,’ ‘3-C-2’).” “The 35th Investitures and Commencement Ceremonies for the candidates of Bachelor of Laws was scheduled on the 16th of April 1988 at 3:00 o’clock in the afternoon, and in the invitation for that occasion the name of the plaintiff appeared as one of the candidates. (Exhibits ‘B,’ ‘B-6,’ ‘B-6-A’).

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At the foot of the list of the names of the candidates there appeared however the following annotation: ‘This is a tentative list. Degrees will be conferred upon these candidates who satisfactorily complete requirements as stated in the University Bulletin and as approved of the Department of Education, Culture and Sports. (Exhibit ‘B-7-A’). “The plaintiff attended the investiture ceremonies at F. dela Cruz Quadrangle, U.E., Recto Campus, during the program of which he went up the stage when his name was called, escorted by her (sic) mother and his eldest brother who assisted in placing the Hood, and his Tassel was turned from left to right, and he was thereafter handed by Dean Celedonio a rolled white sheet of paper symbolical of the Law Diploma. His relatives took pictures of the occasion. (Exhibits ‘C’ to ‘C-6’, ‘D-3’ to ‘D-11’). “He tendered a blow-out that evening which was attended by neighbors, friends and relatives who wished him good luck in the forthcoming bar examination. There were pictures taken too during the blow-out (Exhibits ‘D’ to ‘D-1’). “He thereafter prepared himself for the bar examination. He took a leave of absence without pay from his job from April 20, 1988 to September 30, 1988 (Exhibit ‘G’) and enrolled at the pre-bar review class in Far Eastern University (Exhibits ‘F’ to ‘F-2’). Having learned of the deficiency he dropped his review class and was not able to take the bar examination.” Consequently, respondent sued petitioner for damages alleging that he suffered moral shock, mental anguish, serious anxiety, besmirched reputation, wounded feelings and sleepless nights when he was not able to take the 1988 bar examinations arising from the latter’s negligence. He prayed for an award of moral and exemplary damages, unrealized income, attorney’s fees, and costs of suit. In its answer with counterclaim, petitioner denied liability arguing mainly that it never led respondent to believe that he completed the requirements for a Bachelor of Laws degree when his name was included in the tentative list of graduating students. x x x [After trial, the lower court rendered judgment in favor of the plaintiff ordering the defendant to pay damages. On appeal by both parties, the decision was affirmed by the Court of Appeals (CA) with modification as to the amount of damages. Petitioner school elevated the case to the Supreme Court arguing that it has no liability to respondent Romeo A. Jader, considering that the proximate and immediate cause of the alleged damages incurred by the latter arose out of his own negligence in not verifying from the professor concerned the result of his removal exam. The argument of the petitioner was, however, rejected.] When a student is enrolled in any educational or learning institution, a contract of education is entered into between said institution and the student.

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The professors, teachers or instructors hired by the school are considered merely as agents and administrators tasked to perform the school’s commitment under the contract. Since the contracting parties are the school and the student, the latter is not duty-bound to deal with the former’s agents, such as the professors with respect to the status or result of his grades, although nothing prevents either professors or students from sharing with each other such information. The Court takes judicial notice of the traditional practice in educational institutions wherein the professor directly furnishes his/her students their grades. It is the contractual obligation of the school to timely inform and furnish sufficient notice and information to each and every student as to whether he or she had already complied with all the requirements for the conferment of a degree or whether they would be included among those who will graduate. Although commencement exercises are but a formal ceremony, it nonetheless is not an ordinary occasion, since such ceremony is the educational institution’s way of announcing to the whole world that the students included in the list are those who will be conferred a degree during the baccalaureate ceremony have satisfied all the requirements for such degree. Prior or subsequent to the ceremony, the school has the obligation to promptly inform the student of any problem involving the latter’s grades and performance and also most importantly, of the procedures for remedying the same. Petitioner, in belatedly informing respondent of the result of the removal examination, particularly at a time when he had already commenced preparing for the bar exams, cannot be said to have acted in good faith. Absence of good faith must be sufficiently established for a successful prosecution by the aggrieved party in a suit for abuse of right under Article 19 of the Civil Code. Good faith connotes an honest intention to abstain from taking undue advantage of another, even though the forms and technicalities of the law, together with the absence of all information or belief of facts, would render the transaction unconscientious. It is the school that has access to those information and it is only the school that can compel its professors to act and comply with its rules, regulations and policies with respect to the computation and the prompt submission of grades. Students do not exercise control, much less influence, over the way an educational institution should run its affairs, particularly in disciplining its professors and teachers and ensuring their compliance with the school’s rules and orders. Being the party that hired them, it is the school that exercises general supervision and exclusive control over the professors with respect to the submission of reports involving the students’ standing. Exclusive control means that no other person or entity had any control over the instrumentality which caused the damage or injury. The college dean is the senior officer responsible for the operation of an academic program, enforcement of rules and regulations, and the supervision of faculty and student services. He must see to it that his own professors and teachers, regardless of their status or position outside of the university, must comply with the rules set by the latter. The negligent act of a professor who fails to observe the rules of the school, for instance by not promptly submit-

HUMAN RELATIONS: INTENTIONAL TORTS

ting a student’s grade, is not only imputable to the professor but is an act of the school, being his employer. Considering further, that the institution of learning involved herein is a university which is engaged in legal education, it should have practiced what it inculcates in its students, more specifically the principle of good dealings enshrined in Articles 19 and 20 of the Civil Code which states: xxx Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. In civilized society, men must be able to assume that others will do them no intended injury — that others will commit no internal aggressions upon them; that their fellowmen, when they act affirmatively will do so with due care which the ordinary understanding and moral sense of the community exacts and that those with whom they deal in the general course of society will act in good faith. The ultimate thing in the theory of liability is justifiable reliance under conditions of civilized society. Schools and professors cannot just take students for granted and be indifferent to them, for without the latter, the former are useless. Educational institutions are duty-bound to inform the students of their academic status and not wait for the latter to inquire from the former. The conscious indifference of a person to the rights or welfare of the person/ persons who may be affected by his act or omission can support a claim for damages. Want of care to the conscious disregard of civil obligations coupled with a conscious knowledge of the cause naturally calculated to produce them would make the erring party liable. Petitioner ought to have known that time was of the essence in the performance of its obligation to inform respondent of his grade. It cannot feign ignorance that respondent will not prepare himself for the bar exams since that is precisely the immediate concern after graduation of an LL.B. graduate. It failed to act seasonably. Petitioner cannot just give out its student’s grades at any time because a student has to comply with certain deadlines set by the Supreme Court on the submission of requirements for taking the bar. Petitioner’s liability arose from its failure to promptly inform respondent of the result of an examination and in misleading the latter into believing that he had satisfied all requirements for the course. Worth quoting is the following disquisition of the respondent court: “It is apparent from the testimony of Dean Tiongson that defendantappellee University had been informed during the deliberation that the professor in Practice Court I gave plaintiff-appellant a failing grade. Yet, defendant-appellee still did not inform plaintiff-appellant of his failure to complete the requirements for the degree nor did they remove his name from the tentative list of candidates for graduation. Worse, defendant-appellee university, despite the knowledge that plaintiff-appellant failed in Practice Court I, again included plaintiff-appellant’s name in the “tentative” list of

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candidates for graduation which was prepared after the deliberation and which became the basis for the commencement rites program. Dean Tiongson reasons out that plaintiff-appellant’s name was allowed to remain in the tentative list of candidates for graduation in the hope that the latter would still be able to remedy the situation in the remaining few days before graduation day. Dean Tiongson, however, did not explain how plaintiff-appellant Jader could have done something to complete his deficiency if defendant-appellee university did not exert any effort to inform plaintiff-appellant of his failing grade in Practice Court I.” Petitioner cannot pass on its blame to the professors to justify its own negligence that led to the delayed relay of information to respondent. When one of two innocent parties must suffer, he through whose agency the loss occurred must bear it. The modern tendency is to grant indemnity for damages in cases where there is abuse of right, even when the act is not illicit. If mere fault or negligence in one’s acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. A person should be protected only when he acts in the legitimate exercise of his right, that is, when he acts with prudence and in good faith, but not when he acts with negligence or abuse. However, while petitioner was guilty of negligence and thus liable to respondent for the latter’s actual damages, we hold that respondent should not have been awarded moral damages. We do not agree with the Court of Appeals’ findings that respondent suffered shock, trauma and pain when he was informed that he could not graduate and will not be allowed to take the bar examinations. At the very least, it behooved on respondent to verify for himself whether he has completed all necessary requirements to be eligible for the bar examinations. As a senior law student, respondent should have been responsible enough to ensure that all his affairs, specifically those pertaining to his academic achievement, are in order. Given these considerations, we fail to see how respondent could have suffered untold embarrassment in attending the graduation rites, enrolling in the bar review classes and not being able to take the bar exams. If respondent was indeed humiliated by his failure to take the bar, he brought this upon himself by not verifying if he has satisfied all the requirements including his school records, before preparing himself for the bar examination. Certainly, taking the bar examinations does not only entail a mental preparation on the subjects thereof; there are also prerequisites of documentation and submission of requirements which the prospective examinee must meet. ARTURO P. VALENZUELA, et al. vs. THE HONORABLE COURT OF APPEALS, et al. G.R. No. 83122, October 19, 1990

The antecedent facts of the case are as follows:

Petitioner Arturo P. Valenzuela (Valenzuela for short) is a General Agent of private respondent Philippine American General Insurance Com-

HUMAN RELATIONS: INTENTIONAL TORTS

pany, Inc. (Philamgen for short) since 1965. As such, he was authorized to solicit and sell in behalf of Philamgen all kinds of non-life insurance, and in consideration of services rendered was entitled to receive the full agent’s commission of 32.5% from Philamgen under the scheduled commission rates (Exhibits “A” and “1”). From 1973 to 1975, Valenzuela solicited marine insurance from one of his clients, the Delta Motors, Inc. (Division of Electronics Airconditioning and Refrigeration) in the amount of P4.4 Million from which he was entitled to a commission of 32% (Exhibit “B”). However, Valenzuela did not receive his full commission which amounted to P1.6 Million from the P4.4 Million insurance coverage of the Delta Motors. During the period 1976 to 1978, premium payments amounting to P1,946,886.00 were paid directly to Philamgen and Valenzuela’s commission to which he is entitled amounted to P632,737.00. In 1977, Philamgen started to become interested in and expressed its intent to share in the commission due Valenzuela (Exhibits “III” and “III-1”) on a fifty-fifty basis (Exhibit “C”). Valenzuela refused (Exhibit “D”). On February 8, 1978 Philamgen and its President, Bienvenido M. Aragon insisted on the sharing of the commission with Valenzuela (Exhibit E). This was followed by another sharing proposal dated June 1, 1978. On June 16, 1978, Valenzuela firmly reiterated his objection to the proposals of respondents stating that: “It is with great reluctance that I have to decline upon request to signify my conformity to your alternative proposal regarding the payment of the commission due me. However, I have no choice for to do otherwise would be violative of the Agency Agreement executed between our goodselves.” (Exhibit B-1) Because of the refusal of Valenzuela, Philamgen and its officers, namely: Bienvenido Aragon, Carlos Catolico and Robert E. Parnell took drastic action against Valenzuela. They: (a) reversed the commission due him by not crediting in his account the commission earned from the Delta Motors, Inc. insurance (Exhibit “J” and “2”); (b) placed agency transactions on a cash-andcarry basis; (c) threatened the cancellation of policies issued by his agency (Exhibits “H” to “H-2”); and (d) started to leak out news that Valenzuela has a substantial account with Philamgen. All of these acts resulted in the decline of his business as insurance agent (Exhibits “N,” “O,” “K” and “K-8”). Then on December 27, 1978, Philamgen terminated the General Agency Agreement of Valenzuela (Exhibit “J,” pp. 1-3, Decision Trial Court dated June 23, 1986, Civil Case No. 121126, Annex I, Petition). xxx After a painstaking review of the entire records of the case and the findings of facts of both the court a quo and respondent appellate court, we are constrained to affirm the trial court’s findings and rule for the petitioners. We agree with the court a quo that the principal cause of the termination of Valenzuela as General Agent of Philamgen arose from his refusal to share his Delta commission. The records sustain the conclusions of the trial court on the apparent bad faith of the private respondents in terminating the

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General Agency Agreement of petitioners. It is axiomatic that the findings of fact of a trial judge are entitled to great weight (People vs. Atanacio, 128 SCRA 22 [1984]) and should not be disturbed on appeal unless for strong and cogent reasons because the trial court is in a better position to examine the evidence as well as to observe the demeanor of the witnesses while testifying. (Chase vs. Buencamino, Sr., 136 SCRA 365 [1985]; People vs. Pimentel, 147 SCRA 25 [1987]; and Baliwag Trans., Inc. vs. Court of Appeals, 147 SCRA 82 [1987]). In the case at bar, the records show that the findings and conclusions of the trial court are supported by substantial evidence and there appears to be no cogent reason to disturb them. (Mendoza vs. Court of Appeals, 156 SCRA 597 [1987]). As early as September 30, 1977, Philamgen told the petitioners of its desire to share the Delta Commission with them. It stated that should Delta back out from the agreement, the petitioners would be charged interests through a reduced commission after full payment by Delta. On January 23, 1978 Philamgen proposed reducing the petitioners’ commissions by 50% thus giving them an agent’s commission of 16.25%. On February 8, 1978, Philamgen insisted on the reduction scheme followed on June 1, 1978 by still another insistence on reducing commissions and proposing two alternative schemes for reduction. There were other pressures. Demands to settle accounts, to confer and thresh out differences regarding the petitioners’ income and the threat to terminate the agency followed. The petitioners were told that the Delta commissions would not be credited to their account (Exhibit “J”). They were informed that the Valenzuela agency would be placed on a cash and carry basis thus removing the 60-day credit for premiums due. (TSN, March 26, 1979, pp. 54-57). Existing policies were threatened to be cancelled. (Exhibits “H” and “14”; TSN, March 26, 1979, pp. 29-30). The Valenzuela business was threatened with diversion to other agencies. (Exhibit “NNN”). Rumors were also spread about alleged accounts of the Valenzuela agency. (TSN, January 25, 1980, p. 41). The petitioners consistently opposed the pressures to hand over the agency or half of their commissions and for a treatment of the Delta account distinct from other accounts. The pressures and demands, however, continued until the agency agreement itself was finally terminated. It is also evident from the records that the agency involving petitioner and private respondent is one “coupled with an interest,” and, therefore, should not be freely revocable at the unilateral will of the latter. In the insurance business in the Philippines, the most difficult and frustrating period is the solicitation and persuasion of the prospective clients to buy insurance policies. Normally, agents would encounter much embarrassment, difficulties, and oftentimes frustrations in the solicitation and procurement of the insurance policies. To sell policies, an agent exerts great effort, patience, perseverance, ingenuity, tact, imagination, time and money. In the case of Valenzuela, he was able to build up an agency from scratch in 1965 to a highly productive enterprise with gross billings of about Two Million Five Hundred Thousand Pesos (P2,500,000.00) premiums per annum.

HUMAN RELATIONS: INTENTIONAL TORTS

The records sustain the finding that the private respondent started to covet a share of the insurance business that Valenzuela had built up, developed and nurtured to profitability through over thirteen (13) years of patient work and perseverance. When Valenzuela refused to share his commission in the Delta account, the boom suddenly fell on him. The private respondents by the simple expedient of terminating the General Agency Agreement appropriated the entire insurance business of Valenzuela. With the termination of the General Agency Agreement, Valenzuela would no longer be entitled to commission on the renewal of insurance policies of clients sourced from his agency. Worse, despite the termination of the agency, Philamgen continued to hold Valenzuela jointly and severally liable with the insured for unpaid premiums. Under these circ*mstances, it is clear that Valenzuela had an interest in the continuation of the agency when it was unceremoniously terminated not only because of the commissions he should continue to receive from the insurance business he has solicited and procured but also for the fact that by the very acts of the respondents, he was made liable to Philamgen in the event the insured fail to pay the premiums due. They are estopped by their own positive averments and claims for damages. Therefore, the respondents cannot state that the agency relationship between Valenzuela and Philamgen is not coupled with interest. “There may be cases in which an agent has been induced to assume a responsibility or incur a liability, in reliance upon the continuance of the authority under such circ*mstances that, if the authority be withdrawn, the agent will be exposed to personal loss or liability.” (See MEC 569 p. 406). Furthermore, there is an exception to the principle that an agency is revocable at will and that is when the agency has been given not only for the interest of the principal but for the interest of third persons or for the mutual interest of the principal and the agent. In these cases, it is evident that the agency ceases to be freely revocable by the sole will of the principal. (See Padilla, Civil Code Annotated, 56 ed., Vol. IV, p. 350). xxx At any rate, the question of whether or not the agency agreement is coupled with interest is helpful to the petitioners’ cause but is not the primary and compelling reason. For the pivotal factor rendering Philamgen and the other private respondents liable in damages is that the termination by them of the General Agency Agreement was tainted with bad faith. Hence, if a principal acts in bad faith and with abuse of right in terminating the agency, then he is liable in damages. This is in accordance with the precepts in Human Relations enshrined in our Civil Code that ‘every person must in the exercise of his rights and in the performance of his duties act with justice, give every one his due, and observe honesty and good faith (Art. 19, Civil Code), and every person who, contrary to law, wilfully or negligently causes damages to another, shall indemnify the latter for the same. (Art. 20, id.). ‘Any person who wilfully causes loss or injury to another in a manner contrary to morals, good customs and public policy shall compensate the latter for the damages.’ (Art. 21, id.)”

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ACTS CONTRA BONUS MORES “Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for damages.”

A.

GENERAL CONCEPTS.

The cases c